Intestate Succession: Who Inherits When There Is No Will?

State probate codes generally rank heirs by degree of kinship, beginning with the surviving spouse and biological or adopted children. Community property states such as California, Texas, and Arizona apply different rules to assets acquired during marriage. Half-blood relatives, posthumous heirs, and adopted children each have specific treatment under state law. Disinheritance does not happen by default because no will means the state's default rules apply. A formal heirship claim before the probate court resolves who inherits when relationship is disputed.

Per stirpes distribution passes a deceased heir's share down to that heir's descendants by representation. Per capita distribution divides the estate equally among living heirs at the same generational level. Most states default to per stirpes for descendants and per capita for collateral relatives. The wrong distribution method can shift hundreds of thousands of dollars between branches of a family. Early estate distribution analysis prevents months of post-funeral confusion.

A surviving spouse typically inherits the entire estate when no descendants exist, but children from prior relationships change everything. Community property states give the spouse outright ownership of half the marital property at death. Common-law states use elective share statutes that let a spouse claim a percentage of the augmented estate. Time limits to elect, often six to nine months from probate opening, vary by jurisdiction. Skilled spousal inheritance planning prevents the loss of these critical rights.

Non-marital children may inherit under intestate succession when paternity is established by acknowledgment, adjudication, or DNA evidence. Posthumous children conceived before death typically share equally with other children. Stepchildren generally do not inherit unless legally adopted, regardless of the family bond. Half-blood siblings inherit equally with whole-blood siblings in most states, though some jurisdictions still apply older fractional rules. The order of priority among claimants often hinges on documentary proof and witness testimony presented in probate court.

Probate court appoints a personal representative who serves under fiduciary duties of loyalty, care, and full disclosure. Required steps include filing the petition, publishing notice to creditors, inventorying assets, and paying valid claims before distribution. Bond requirements protect heirs against mismanagement, and waiver requires unanimous heir consent in most states. Court accountings run on interim and final cycles, with deadlines ranging from six months to two years. Coordinated fiduciary services prevent personal liability and speed distribution to heirs.

Not every asset passes through probate, since payable-on-death accounts, life insurance, retirement accounts, and joint tenancy assets transfer outside the court. The personal representative still must locate, value, and account for every probate asset including real estate, bank accounts, and personal property. Creditor claim windows commonly run four to six months from publication, with strict bar dates protecting the estate assets. Tax obligations, including final income tax and any estate tax, must be paid before final distribution. Careful asset marshaling preserves value and protects every heir's share.

Heirship determination proceedings establish, by judicial finding, exactly who is entitled to inherit under intestate succession law. Courts examine birth certificates, marriage records, adoption decrees, and DNA evidence when paternity is contested. Mediation often resolves family conflicts without trial, preserving relationships and reducing legal cost. When mediation fails, contested hearings determine heirship before any distribution proceeds. Experienced inheritance dispute counsel preserves each claimant's rights from the outset.

Personal representatives owe fiduciary duties enforced through removal, accounting, and surcharge actions in probate court. Common breaches include self-dealing, commingling, delay, and failure to disclose material facts to interested parties. Surcharge requires the fiduciary to repay the estate from personal funds for losses caused by the breach. Statutes of limitation run from discovery or from final accounting, depending on the jurisdiction. When intestate succession fiduciaries fail, breach of fiduciary duty counsel can pursue rapid removal and full recovery.