What Happens If You Die Without a Will?
Dying without a will means state laws decide who inherits your assets, not you. It also creates longer, more expensive probate and leaves guardianship decisions for your children up to a judge. This article explores the risks of dying intestate and how a simple will can protect your family.
By Michael Ruger, CFP®
Partner and Chief Investment Officer at Greenbush Financial Group
No one likes to think about their own death, but estate planning is one of the most important financial steps you can take to protect your family and loved ones. One of the simplest — yet most critical — estate planning tools is a will.
Unfortunately, many people pass away without one. According to surveys, more than half of Americans don’t have a will in place. But what really happens if you die without a will?
State laws decide who gets your assets — not you.
The probate process becomes longer, more expensive, and more stressful for your family.
Guardians for minor children are chosen by a judge, not by you.
Children can inherit large sums at age 18 with no safeguards, which can sometimes hurt more than help.
Simple solutions exist — a basic will can often be set up for a minimal cost.
Let’s walk through what happens if you don’t have a will, why that can create complications, and what you can do to avoid these pitfalls.
State Laws Take Over
If you die without a will, you die “intestate.” This means your estate will be distributed according to your state’s intestacy laws. These laws vary by state, but most follow a general pattern:
If you’re married, your assets may be split between your spouse and children.
If you’re single with children, everything generally goes to your kids in equal shares.
If you have no spouse or children, assets may pass to your parents, siblings, nieces, nephews, or more distant relatives.
The problem? State law or a judge, who doesn’t know you or your family dynamics will decide how your estate is distributed. You lose the ability to decide who receives what, when they receive it, or under what conditions.
A Longer, More Expensive Probate Process
With a valid will, your executor follows your instructions and distributes assets relatively quickly. Without a will, the court must:
Appoint an executor (which may take time and spark disagreements).
Require appraisals of property, attorney involvement, and court oversight.
Follow state intestacy laws to distribute assets.
This makes the probate process longer, more complicated, and often more expensive. Beneficiaries can wait months — even years — before assets are fully distributed.
For families already grieving a loss, this added complexity can be emotionally draining.
The Stakes Are Higher With Minor Children
If you have children under 18, the consequences of dying without a will become even more serious.
Guardianship: A judge will appoint a guardian for your children, without knowing who you would have chosen.
Inheritance access: At age 18, children may receive their full inheritance outright.
That means a teenager could suddenly inherit hundreds of thousands of dollars from life insurance, retirement accounts, or the sale of your home. Without safeguards in place, that money may not be used wisely and could dramatically affect your child’s life path.
A properly drafted will (or even better, a trust) can set rules, such as delaying inheritance until your children reach a more mature age or providing funds gradually over time.
Probate Isn’t the Only Issue
Estate planning attorneys often recommend going one step further than a will to avoid probate altogether. Common strategies include:
Revocable living trust: Assets in a trust bypass probate and are distributed privately according to your instructions.
Transfer on Death (TOD) accounts: Bank and brokerage accounts with TOD designations pass directly to beneficiaries without probate.
Beneficiary designations: Retirement accounts and life insurance policies allow you to name beneficiaries directly, which supersedes a will.
These strategies not only streamline the distribution process but can also protect your family from unnecessary legal fees and court delays.
A Will Doesn’t Have to Be Expensive
One of the biggest misconceptions is that creating a will is time-consuming or costly. In reality, establishing a will can be very inexpensive:
Online services like LegalZoom.com or Rocket Lawyer can help you set up a simple will for a minimal fee.
While these are good starting points, we recommend working with an estate attorney if your situation is more complex — especially if you have children, significant assets, or unique wishes.
Think of a will as one of the most affordable forms of “insurance” you can buy. For a small upfront cost, you can save your family thousands of dollars, countless hours, and significant emotional stress later.
Final Thoughts
If you die without a will, the state — not you — decides how your assets are distributed and who cares for your children. The probate process becomes more costly, more time-consuming, and much more stressful for your loved ones.
The good news is that creating a will is relatively easy and inexpensive. Whether through a simple online service or a consultation with an estate attorney, taking this step ensures you stay in control and your family is protected.
At the end of the day, a will is about more than just money — it’s about peace of mind.
About Michael……...
Hi, I’m Michael Ruger. I’m the managing partner of Greenbush Financial Group and the creator of the nationally recognized Money Smart Board blog . I created the blog because there are a lot of events in life that require important financial decisions. The goal is to help our readers avoid big financial missteps, discover financial solutions that they were not aware of, and to optimize their financial future.
Frequently Asked Questions (FAQs)
What happens if you die without a will?
If you die without a will, your estate is distributed according to your state’s intestacy laws. This means a court decides who receives your assets and when, which can lead to outcomes you may not have intended.
How does dying without a will affect the probate process?
Without a will, the probate process is usually longer, more expensive, and more complicated. The court must appoint an executor, oversee asset distribution, and may require appraisals or attorney involvement—all of which add time and cost.
What happens to minor children if a parent dies without a will?
If you have minor children and no will, a judge will decide who becomes their guardian. In addition, any inheritance they receive becomes theirs outright at age 18, without safeguards to ensure it’s managed responsibly.
Can you avoid probate without a will?
Yes. Using tools like revocable living trusts, Transfer on Death (TOD) accounts, and beneficiary designations can help assets pass directly to heirs without going through probate. These strategies can save time and reduce legal expenses.
Is creating a will expensive or time-consuming?
Creating a basic will is typically affordable and straightforward. Online services can help for a low cost, while more complex situations may benefit from an estate attorney’s guidance.
Why is having a will so important?
A will ensures your wishes are honored, your loved ones are protected, and your estate is distributed efficiently. It also provides peace of mind knowing your family won’t face unnecessary legal or financial burdens during an already difficult time.
A CFP® Explains: Wills, Health Proxy, Power of Attorney, & Trusts
When we are constructing financial plans for clients, we inevitably get to the estate planning portion of the plan, and ask them “Do you have updated wills, a health proxy, and a power of attorney in place?
When we are constructing financial plans for clients, we inevitably get to the estate planning portion of the plan, and ask them “Do you have updated wills, a health proxy, and a power of attorney in place?” The most common responses that we receive are:
“I know we should have but we never did”
“I did but it was over 10 years ago”
“I have a will but not a health proxy or a power of attorney”
“I have heard about trusts, should I have one?”
The Will, Health Proxy, and Power of Attorney are the three main estate documents that most people should have. In this article I will review:
How Wills work and items that you should include in your Will
Why you should have a Health Proxy and how they work
Power of Attorney
The probate process
Considering a testamentary trust
Assets that pass outside of the Will
Revocable Trusts & Irrevocable Trusts
Estate planning tips
How much does it cost to establish a will, health proxy, and a power of attorney
Establishing A Will
The most basic estate document that most people are aware of is a written Will. The Will provides specific guidance as to who will receive your assets after you have passed away. The Will also establishes who would be the guardian of your minor children should you pass away prior to your children reaching the age of majority. Without a Will, state laws and the court system that know nothing about you, will decide who receives your assets and who will be the guardian of your minor children; not a situation that most people want.
The Will can be a very simple document. If you are married and have children, the Will may state that if you pass away everything goes to your spouse but if both you and your spouse were to pass away simultaneously, the assets go to the children. For individuals or married couples without children, or for married couples that have been divorced, it’s also critical to have a Will to provide direction as to what will happen to your assets if you were to pass away.
You can engage an estate attorney to complete a simple Will or if your Will is very simple and straightforward, you may elect to use a do-it-yourself option through a platform like Legal Zoom. We typically encourage clients to meet with an estate attorney because when it comes to estate planning many people don’t know what questions to ask to get the right documents and plan in place. If you are married with minor children, and you and your spouse were to pass away leaving all the assets to the kids, with a simple Will, they would have access to their full inheritance at age 18. An 18 year old having access to large sums of money may not be an optimal situation. In those cases, you may want to include a testamentary trust or revocable trust in your estate plan to put some restrictions in place as to how and when your children will have access to their inheritance.
Probate
I'm going pause here for a moment and explain what probate is and the probate process. When someone passes away, all of the assets included in their estate go through what's called a “probate process”. The probate process is a legal process of accounting for all of your assets, debts, and transferring your assets to the beneficiaries of your estate. The person listed in your will as the “executor” is responsible for coordinating the probate process. Depending on the size of the estate, your executor will usually work with an attorney, an accountant, and possibly appraiser, to:
Value the assets in your estate
Work with the courts to process your estate
Pay outstanding expenses or debts
Coordinate the transfer of assets to your beneficiaries
Since the probate process is a legal process involving the courts, the process often takes longer than beneficiaries expect. Individuals will make the incorrect assumption that when you pass away, they just read the will, and your beneficiaries receive the assets within a few days or weeks; unfortunately that's not that case. It’s not uncommon for the probate process to take 6 to 12 months and there are expenses involved with probating an estate. If it’s a complex estate, it could take over a year to complete the probate process.
For these reasons, it’s a common goal with estate planning to find ways to avoid the probate process and pass you assets directly to your beneficiaries. I will explain more about these strategies later on. But circling back to our discussion about the Will, if all you have is a Will, when you pass away, the assets in your estate will pass through this probate process.
Testamentary Trusts
There are a lot of different types of trusts within in estate planning world. One of the most basic and common trusts, especially for individuals with children under that age of 25, is a testamentary trust. A testamentary trust is a trust that is built into your will. With at testamentary trust, you are not establishing a trust today , but rather, if you pass away, a trust is established during the probate process and you can direct assets to the trust. Building a testamentary trust into your Will gives you some control over how the assets are distributed to the beneficiaries after you have passed away.
It's common for individuals or married couples with children under that age of 25, to build these testamentary trusts into their Wills. I will illustrate how these trusts work in the example below.
Example: Jim and Sarah have two children, Rob age 14 and Wendy age 8. Between the value of their house, life insurance policies, and other assets, their estate would total $1.5M. Jim & Sarah realize that if something were to happen to them tomorrow, they would not want their kids to inherit $1.5M when they turn age 18 because they might not go to college, they may try to start a business that fails, buy a Corvette, etc. In their Will they establish a Testamentary Trust that states that if both parents pass away prior to the children turning age 25, all of their assets will flow into a trust, and that Sarah’s brother Harold will serve as the trustee. Harold as the trustee is able to distribute cash from the trust for living expenses, education, health expenses, and other expenses deemed necessary for the well being of the children. The children will receive 1/3 of their inheritance at age 25, 30, and 35.
You can design these testamentary trusts however you would like. In the Will you would designate who will be the trustee of your trust and the terms of the trust.
IMPORTANT NOTE: Testamentary trusts do not avoid probate like other trusts do. The trust is established as part of the probate process.
Revocable Trusts & Irrevocable Trusts
It's also common for individuals and married couples to consider establishing either a Revocable Trust or Irrevocable Trust as part of their estate planning. These are separate from Testamentary Trusts. Revocable Trusts and Irrevocable Trusts are being established today and assets owned by the trust pass in accordance with the terms set forth in the trust document. There are material differences between these two types of trusts but some primary reasons why people establish these types of trust are to:
Avoid probate
Protecting assets from a long term event
Control how and when assets are distributed beyond the date of death
Reducing the size of the estate
Advanced tax strategies
Assets That Pass Outside of The Will
There are certain assets that pass outside of the Will. Many of these “other assets” pass by “contract”, meaning there are beneficiaries designated on those accounts. A common example of assets that pass by contract are 401(k) accounts, IRA’s, annuities, and life insurance. When you set up those accounts you typically designate beneficiaries for each account and your Will could say something completely different. The assets that pass by contract do not have to go through the probate process unless the beneficiary listed on the account is your estate which is usually not an advantageous election for most individuals.
Transfer On Death Accounts (TOD)
One of the estate planning strategies that we use with clients is instead of holding an individual investment account in the name of the individual, we will register the account as a “transfer on death” (TOD) account. If you have an individual brokerage account and you pass away, the value of that account will have to go through probate. By simply adding the TOD feature to an existing individual brokerage account which lists beneficiaries similar to a 401(K) or IRA account, that account now avoids probate, and passes by contract directly to the beneficiaries.
Depending on the assets that make up your estate, you may be able to setup TOD accounts as opposed to going through the process of setting up trusts but it varies from person to person.
Power of Attorney
Let’s shift gears now over to the Power of Attorney document. A Power of Attorney document is important because it allows someone to step into your shoes and handle your financial affairs, should you become incapacitated. Some common examples are:
Example 1: If you're in a car accident and end up in a coma, for accounts that are held only in your name, such as a checking account, investment account, or credit card, they will only speak to you. Being married does not give your spouse access financially to those accounts while you are still alive but your spouse may need access to them to continue to pay your bills or get access to cash to pay expenses while you're incapacitated. Having a power of attorney document would allow your spouse or trusted individual named as your “agent” to act financially on your behalf.
Example 2: Having a power of attorney in place is key for Long Term Care events. If you have a spouse or parent and they have a stroke, develop dementia, or another health event that renders them unable to handle their personal finances, you could step in as their agent and handle their personal finances. In long term care situations that can often mean paying a nursing home, applying for Medicaid, paying medical bills, or shifting the ownership of assets to protect from a Medicaid spend down.
The Power of Attorney can also be built so your agent is not given that power today but rather it would only be given if a triggering event happened sometime in the future. With this document you really have to name someone you 100% trust. As financial planners, we have seen cases where there is abuse of the Power of Attorney powers and it’s never pretty. It's not uncommon for a power of attorney to allow the agent to make gifts as a planning tool, but that might also include gifts to themselves, so you have to fully trust your agent and the powers that you provide to them.
Health Proxy
The health proxy is usually the least fun estate document to complete but is equally important. In this document you are naming the individual that has the right to make your health decisions for you if you are incapacitated. This document spells out what you want and don’t want to have happen if certain health events occur. While it's not uncommon for individuals to be a little uncomfortable completing this document due to the nature of the questions, it's a lot better to complete it now, versus your family members trying to determine what your wishes would be when a severe health event has already occurred.
The health proxy will list items like:
Would you be willing to be put on life support?
If you could not eat, would you allow them to use a feeding tub
Resuscitation preferences
Willingness to accept blood transfusions
Again, not fun things to think about but by you making these decisions while you are of sound body and mind, it takes away the difficult situation where your family members have to decide in the heat of the moment what you would have wanted. That situation can sometimes tear families apart.
Keep Your Estate Plan Up To Date
All too often, we run into this situation where a client will acknowledge that they have estate documents, but they were established 20 years ago, and they never made any changes. It makes sense to meet with your estate attorney and revisit your estate plan:
Every five years
If you move to a different state
When Congress makes major changes to the estate tax rules
The estate laws vary state by state. If we have clients that are planning to move and they plan to change their state of domicile to another state, we will often encourage them to meet with an estate attorney within that state once the move is complete. Congress has also made a number of changes to the federal estate tax laws over the past few years, with potentially more in the works, and not revisiting the estate plan could end up costing your beneficiaries tens of thousands of dollars in estate taxes that could have been avoided with some advanced planning.
Cost of Estate Documents
The cost of establishing a Will, Health Proxy, Power of Attorney, and Trusts, often varies based on the complexity of your estate plan. A simple Will may cost less than $1,000 to establish through an estate attorney. Establishing all three documents: Will, Health Proxy, and Power of Attorney may cost somewhere between $1,000 - $3,000. While it's not uncommon for individuals to be surprised by the cost of setting up these estate documents, I always urge people to think about the cost of not having those documents in place. The probate process with professionals involved could cost thousands of dollar, your beneficiaries could lose thousands of dollars in taxes that could have been avoided, not to mention the emotional toll on your family trying to figure out what you would have wanted without clear guidance from your estate documents. Revocable Trusts and Irrevocable Trust
About Michael……...
Hi, I’m Michael Ruger. I’m the managing partner of Greenbush Financial Group and the creator of the nationally recognized Money Smart Board blog . I created the blog because there are a lot of events in life that require important financial decisions. The goal is to help our readers avoid big financial missteps, discover financial solutions that they were not aware of, and to optimize their financial future.
