Educational guide — not legal advice. Confirm specifics with a licensed attorney in your state.
What a will does that an intestacy statute does not
Every US state has an intestacy statute — a default order of distribution that applies when a person dies without a valid will. The two operate on different sets of decisions. This table sets out which decisions each one controls.
| Decision | Directed by a will | Under intestacy |
|---|---|---|
| Who inherits | Anyone the testator names, including non-relatives | Only the classes of relatives listed in the statute |
| Guardian for minor children | Named by the testator | Appointed by the court |
| Who administers the estate | Executor named by the testator | Administrator appointed by the court, in the statutory priority order |
| Specific items to specific people | Directed by specific bequest | Not possible — the estate is distributed by fractional share |
| Gifts to a charity, friend, or unmarried partner | Directed by the will | Not possible — no statutory share exists for them |
| Stepchildren not legally adopted | May be named | Take nothing under most states’ statutes |
| Age at which a child receives property outright | May be deferred by a testamentary trust | Outright at the age of majority, subject to a guardianship of the estate |
What the intestacy statutes distribute, and to whom
The order varies by state, but the pattern across the fifty statutes is consistent:
- A surviving spouse and descendants take first, in shares fixed by the statute. The split between spouse and descendants differs — several states give the whole estate to the spouse where all descendants are also the spouse’s, and reduce the spouse’s share where they are not.
- Where there is no spouse or descendant, parents take.
- Then siblings and their descendants, then grandparents and their descendants, moving outward through the statutory table of consanguinity.
- Where no taker within the statutory degrees can be found, the property escheats to the state.
Each state’s own order, shares, and thresholds are documented in the by-state guides: What Happens If You Die Without a Will, by State.
Who intestacy statutes exclude
These exclusions are a matter of statutory text, not of practice:
- Unmarried partners. No state’s intestacy statute creates a share for a partner who is not a spouse, regardless of the length of the relationship. Where a state recognises common-law marriage, that is a separate question of marital status, not an intestate share.
- Stepchildren who were not legally adopted. A small number of states include stepchildren as a last resort before escheat; most do not include them at all.
- Friends, charities, and any other non-relative. The statutes distribute only to the classes they name.
What a will does not do
A will governs a narrower set of property than is commonly assumed.
- It does not avoid probate. A will is the instrument probate administers. Probate avoidance operates through title and contract — beneficiary designations, joint ownership with right of survivorship, transfer-on-death deeds, and assets retitled into a funded trust. See How to Avoid Probate.
- It does not override a beneficiary designation. A retirement account, life insurance policy, or payable-on-death account passes to the named beneficiary by contract. The will has no effect on that asset.
- It has no effect during the signer’s lifetime. Incapacity is governed by a power of attorney and a healthcare directive, which are separate instruments.
- It does not control jointly held property. Property held in joint tenancy with right of survivorship passes to the surviving joint tenant at the moment of death, outside the will and outside probate.
A will is one instrument among several. The full document set is listed in the Estate Planning Checklist.
The situations the two regimes handle differently
Where the intestacy formula and a will produce the same result, the practical difference is confined to the appointment of the guardian and the executor. Where they diverge, the divergence is a function of the statute’s fixed classes. Documented examples:
- Minor children. No intestacy statute permits the decedent to name a guardian; the appointment is made by the court under the state’s guardianship provisions, applying a best-interests standard. A will is the instrument in which a testamentary guardian nomination is made.
- Real property held solely. Real estate titled in one name alone passes through probate in either case. The will directs who takes it; the intestacy statute applies its formula.
- Second marriages and blended families. Statutory shares in this situation vary widely between states — some reduce the spouse’s share where descendants are not the spouse’s, others do not — and the resulting split is fixed by that state’s formula rather than by the decedent’s intentions.
- Childless decedents with no spouse. The statute passes the estate to parents, then siblings, then more remote kin. A gift to a charity, a friend, or a named niece or nephew has no statutory equivalent.
The documented preparation routes
Wills are prepared by three routes. The figures below are the documented price ranges for each; the attribute that differs between them is what is included, not what is legally valid — a validly executed will is valid regardless of how it was drafted.
| Route | Documented cost range | What is included |
|---|---|---|
| Self-prepared from a template | $0 | The document only. Execution formalities are the signer’s responsibility. |
| Online will service | $50–$300 | Guided drafting, state-specific execution instructions, usually a self-proving affidavit form. |
| Attorney-drafted | $300–$1,500 for a basic plan | Drafting, execution supervision, and usually the accompanying powers of attorney and healthcare directive. |
Per-state figures and citations are in Cost of a Will by State. Execution requirements — witness count, notarisation, and whether the state recognises holographic wills — are documented in How to Write a Will and What Makes It Valid.
Events with a documented statutory effect on an existing will
State statutes attach consequences to certain life events regardless of whether the will is updated:
- Divorce. Most states revoke by operation of law any provision in favour of a former spouse on entry of the divorce decree.
- Marriage after execution. Many states give an omitted spouse an intestate share notwithstanding the terms of the will.
- Birth or adoption after execution. Most states give an omitted after-born child a share, under “pretermitted heir” provisions.
- Relocation to another state. A will validly executed in one state is generally honoured in another, but self-proving affidavit forms and witness requirements differ.
What the record shows
A will and an intestacy statute govern overlapping but not identical questions. On distribution, the statutes reach only the classes of relatives they name, in fixed shares. On the appointment of a guardian for minor children and of the person who administers the estate, the statutes leave both to the court; a will is the instrument in which those nominations are made. Neither instrument affects assets that pass by beneficiary designation, joint title, or trust, and neither avoids probate for assets that do not.
Related reading
- What Happens If You Die Without a Will, by State — each state’s intestacy formula, cited.
- Cost of a Will by State — what a will costs and what makes it valid in your state.
- How to Write a Will and What Makes It Valid
- How Much Does a Will Cost with a Lawyer?
- Will vs. Trust: How They Differ
- Estate Planning Checklist
- What Is Estate Planning? The Documents and What Each Does
- How to Avoid Probate
Educational information only — not legal advice. State intestacy rules vary and have specific quirks. Consult a licensed attorney in your jurisdiction. Sources: state probate and intestacy codes (see the by-state guides for section cites); Uniform Probate Code §§2-101 to 2-114 for the states that have adopted it.