Intestate is an adjective describing a person, not a process: you die intestate if you leave no valid will. It also covers cases where a will exists but fails — improperly executed, successfully challenged, or revoked without replacement — and partial intestacy, where a will disposes of some property but leaves other assets unaddressed.
Dying intestate does not mean the state takes your property, which is the fear people usually have. It means the state has already written a will for you, in the form of a statute, and yours is the default plan. It distributes to a fixed order of relatives with no reference to anything you said or intended.
The gaps are where it hurts. An unmarried partner of twenty years typically inherits nothing. A stepchild you raised but never adopted inherits nothing. A close friend, a godchild, a charity you supported all your life: nothing. Meanwhile a sibling you have not spoken to since 1998 may inherit a share, and if you have minor children, a judge who has never met your family decides who raises them.
The formulas themselves differ substantially by state, particularly on how a surviving spouse shares with children from a previous relationship and how community property is treated. If you want to know what would actually happen to your estate, look at your own state's intestacy statute rather than a general description.
Frequently asked
- Does the state take everything if I die intestate?
- Almost never. Your property passes to relatives under a statutory order — typically spouse and children first, then parents, siblings, and outward through more distant kin. Only when a genuinely exhaustive search turns up no legal heirs at all does property escheat to the state, and that is rare. The real risk is not confiscation; it is that the statutory order distributes your estate to people you would not have chosen and excludes people you would have.
- My spouse gets everything automatically, right?
- Frequently not, and this assumption causes real damage. Many states split the estate between a surviving spouse and the children, and the split often changes when there are children from a prior relationship. A surviving spouse can find themselves co-owning the family home with stepchildren, or needing to buy out shares to stay in it. If you want your spouse to receive everything, say so in a will rather than trusting the default.
- What happens to crypto and online accounts in an intestate estate?
- They are estate property like anything else and pass under the intestacy formula — but only if anyone finds them. With no will and no inventory, families routinely have no idea an exchange account or wallet existed. Self-custodied crypto with no recorded keys is simply gone; there is no institution to petition. Dying intestate compounds the problem, because there is also no named person who was told where to look.