No one likes to think about it — but it’s one of the most important questions parents can ask.
If a parent dies without a Will, they are considered to have died “intestate.” When that happens, state law — not the parent — decides:
- Who inherits the assets
- Who manages the estate
- And, in the case of minor children, who may serve as guardian
That means the court follows a default legal formula, regardless of what the parent may have intended.
Here’s what that typically looks like.
1. The Court Decides Who Inherits
When there is no Will, state intestacy laws determine who receives the estate.
While the exact rules vary by state, assets typically pass in this order:
- Spouse
- Children
- Parents
- Siblings
- Extended relatives
However, the division is not always simple.
For example:
- A surviving spouse may not receive everything if there are children.
- Children from prior relationships can complicate distribution.
- Unmarried partners typically inherit nothing under intestacy laws.
The results can surprise families — and may not reflect what the parents would have chosen.
2. The Court Appoints an Administrator
Without a Will naming an executor, the court appoints someone to manage the estate. This person is called an administrator.
The administrator’s responsibilities include:
- Gathering assets
- Paying debts and taxes
- Distributing property according to state law
Family members may need to petition the court for appointment, and disagreements can arise over who should serve.
This adds time, cost, and stress during an already difficult period.
3. If There Are Minor Children, Guardianship Becomes a Court Matter
This is often the biggest concern for parents.
If both parents pass away without naming a guardian in a Will:
- Family members must petition the court for custody.
- The court decides who will raise the children.
- Multiple relatives may disagree about who should serve.
Judges do their best to act in the children’s best interests — but they are making a decision without the parents’ written guidance.
Without a formal guardianship designation, your wishes are not legally binding.
4. Assets for Minor Children Are Controlled by the Court
If minor children inherit assets directly under intestacy laws, those funds are typically:
- Held in a court-supervised account
- Managed by a court-appointed guardian
- Released outright when the child reaches legal adulthood (often age 18)
That means:
- There may be ongoing court oversight.
- The child receives full access to the inheritance at a young age.
Many parents would prefer structured distributions or delayed access — but that requires planning.
5. The Process Often Takes Longer — and Costs More
When there is no Will:
- The court process can be more complicated.
- Additional filings may be required.
- Bond may be required for the administrator.
- Family disputes are more likely.
All of this increases time, expense, and emotional strain.
Common Misconceptions
“My spouse will automatically get everything.”
Not always. In many states, if you have children, your spouse may share the estate with them.
“Our families will figure it out.”
Even close families can experience conflict under stress.
“We don’t have enough assets to need a Will.”
If you have minor children, you absolutely need a Will — even if your estate is modest.
The Good News: This Is Easy to Prevent
Creating a simple estate plan allows you to:
- Choose who manages your estate
- Decide who inherits your assets
- Name a guardian for your children
- Structure how and when children receive money
- Reduce court involvement and family conflict
Most importantly, it ensures your children are raised by someone you trust.
The Bottom Line
If parents die without a Will, the state makes the decisions.
Intestacy laws are a one-size-fits-all solution — and families are anything but one-size-fits-all.
Putting a plan in place is not about preparing for the worst. It’s about protecting your children and removing uncertainty during an already devastating time.
