Without a will, your state decides who gets your house — and it might not be who you’d choose. The property goes through probate (6-18 months), and intestacy laws follow a rigid formula based on your surviving relatives.
Who Inherits Your House (Intestacy)
| Your Surviving Family | Who Gets the House (Most Common) |
|---|---|
| Spouse, no children | Spouse gets 100% |
| Spouse + children (from this marriage) | Spouse gets 100% (most states) |
| Spouse + children from prior marriage | Spouse gets 33-50%; children split the rest |
| Children only, no spouse | Children split equally |
| Parents only | Parents inherit |
| Siblings only | Siblings split equally |
| No close relatives | Extended family, then the state (escheat) |
Every state has different rules. These are the most common patterns.
State-by-State Spouse Inheritance
| State Pattern | Spouse’s Share | States |
|---|---|---|
| Spouse gets all (no children from prior relationship) | 100% | ~20 states |
| Spouse gets first $100K-$200K + 50% of remainder | Majority | ~10 states (NY, NJ, etc.) |
| Spouse gets 50% (children get 50%) | 50% | ~10 states |
| Community property (spouse gets community share) | 50% of community property | AZ, CA, ID, LA, NV, NM, TX, WA, WI |
The Probate Process
| Step | What Happens | Timeline |
|---|---|---|
| 1 | Court appoints an administrator | 1-2 months |
| 2 | Estate inventory filed (including home) | 1-3 months |
| 3 | Creditors notified and claims period opens | 3-6 months |
| 4 | Debts and expenses paid from estate | During claims period |
| 5 | Property distributed per intestacy laws | 6-18 months total |
| 6 | Title transferred to heir(s) | After probate closes |
Cost of Probate
| Expense | Typical Cost |
|---|---|
| Court filing fees | $200-$500 |
| Attorney fees | $3,000-$15,000 (or 2-4% of estate value) |
| Administrator/executor fees | 2-5% of estate value |
| Appraisal fees | $300-$500 |
| Total (for $400,000 home) | $5,000-$25,000 |
How to Avoid This
| Strategy | How It Works | Avoids Probate? |
|---|---|---|
| Joint tenancy (JTWROS) | Surviving owner gets the property automatically | ✅ Yes |
| Tenants by the entirety | Married couples; survives to spouse | ✅ Yes |
| Living trust | Property held in trust; transferred per trust terms | ✅ Yes |
| Transfer-on-death deed | Property transfers to named beneficiary at death | ✅ Yes (~30 states) |
| Will | Directs who inherits, but still goes through probate | ❌ No (minimizes disputes though) |
Common Problems Without a Will
| Scenario | What Happens |
|---|---|
| Unmarried partner | Inherits nothing — they have no legal right under intestacy |
| Blended family | Stepchildren inherit nothing; biological children from prior marriage may compete with your spouse |
| Estranged family | An estranged child or parent you haven’t spoken to in years inherits per the formula |
| Minor children inherit | Court appoints a property guardian; property held until children are 18 |
| Multiple heirs disagree | One wants to sell, others want to keep — may force a partition sale |
| Mortgage on the home | Heirs inherit the debt with the house; must pay or sell |
The Bottom Line
A will costs $200-$1,000 to create. Dying without one can cost your family $5,000-$25,000+ in probate fees, 6-18 months of waiting, and the risk that your home goes to someone you didn’t intend. For the simplest protection: add your spouse to the title as joint tenants, or use a transfer-on-death deed where available.
Related: What Happens to Debt When You Die? | What Happens to a Joint Account When Someone Dies?