The estate of someone who has died must generally pass through the probate process whether or not he left a will. This is because probate transfers the titles of assets from a deceased person to a living one. The only exception is if the deceased had no assets that require the transfer of title. Otherwise, when you die without a will, the laws of the state where you lived, called intestacy laws, determine who to transfer your property to, and no two states follow an identical code.
Each state bases intestacy laws on what it presumes you would have done if you had made a will, which is usually provide for your most immediate family members. In general, if you have a spouse but no children, your spouse will get everything. If you have children but no spouse, your children will usually divide your entire estate between them. If you leave no spouse and no children behind, your parents are generally next in line, followed by your siblings and their children, then your grandparents and their descendants. In most states, if you have no such relatives, your estate passes to the state.
Some assets are safe from the probate process whether or not you have a will. These include any asset with a named beneficiary, such as life insurance policies or retirement accounts. Also, if you own real estate without another individual and the deed is held with joint rights of survivorship, your half of the property will pass directly to that person when you die.
Exceptions to Having a Will
Your state’s intestacy laws may sometimes get involved even if you leave a will. For instance, if you or your lawyer make some mistake in the preparation of your will and your state declares it invalid, your property would be disposed of according to intestacy laws. Also, if you try to disinherit a child by simply not mentioning her in your will, your state laws might override this and consider that you simply forgot to mention her, especially if she was born after you wrote the will. It is safest to disinherit someone by specifically stating in your will that this is your intent. However, most states will not allow you to disinherit a spouse.
Another major complication to dying without a will is that real estate must be probated in the state where it exists, not in the state where you died. Therefore, intestacy laws in separate states might become involved if you owned real estate somewhere other than the state in which you lived.