Dying Without a Will: Who Arranges the Funeral and Who Inherits

When someone dies without a will, state law steps in to decide who can arrange the funeral, who is appointed to run the estate, and who inherits. Generally the surviving spouse and adult children come first, then parents and siblings. A court appoints an administrator, who gets letters of administration as proof of authority. The rules differ by state, so use the examples below as a guide and check your own state's rules.

Who arranges the funeral if there is no will?

With no will or written directive naming someone, the right to decide falls to whoever state law ranks first. Each state has a statute that ranks who can decide on burial or cremation. California's, for example, lists in order:

1. a person named in a power of attorney for health care (or another written directive the law recognizes)
2. the surviving spouse
3. a majority of the adult children
4. a surviving parent or parents
5. a majority of the adult siblings
6. the next closest relatives
7. a court-appointed conservator of the person, then of the estate
8. the public administrator

If nobody on the list can be found, the funeral director or the public administrator may take over. Other states use similar lists with differences, so ask the funeral home or the county which statute applies.

An unmarried partner can be left out of these lists. Putting wishes in writing and naming an agent while alive is the fix, and that's why it matters even for people without much to leave. Our guide on wills and funeral wishes explains how.

Who pays for the funeral?

The estate can pay, and so can the person who signs the funeral contract. Some states set out who is liable. Under California law, the cost of final disposition falls jointly on the kin of the same degree and on the estate. Before you sign anything, use your rights under the FTC Funeral Rule: funeral homes must give price information by phone, give you a General Price List to keep, and provide an itemized statement of what you pick.

Money in the person's own accounts may be frozen until someone has legal authority. Ask the bank what it requires and whether it will pay the funeral home directly. See accessing a deceased person's bank account. Beneficiary and joint accounts can be reached differently. Keep every receipt so whoever pays can be repaid by the estate. If no one can afford a funeral, see what to do if no one can afford a funeral. Our guide on who pays for a funeral goes deeper.

What happens to the estate with no will?

A court appoints an administrator, who does the job an executor would do. The IRS describes an administrator as appointed by the court when there is no will or the executor can't serve, and calls both "personal representatives." The administrator collects the assets, pays creditors, files the tax returns and distributes what remains under state intestacy law.

California's priority list for the administrator starts with the surviving spouse or registered domestic partner, then children, grandchildren, other descendants, parents, siblings and so on, ending with the public administrator, creditors and "any other person." If relatives disagree about who should serve, the court decides who is appointed. Ask the court clerk what the petition requires.

Steps in the usual order:

1. Look for a will first. It may exist but be hard to find. See how to find out if a will exists.
2. Get certified death certificates. See how many you need.
3. Petition the probate court to appoint an administrator, or ask whether your state's small-estate shortcut applies.
4. Get the EIN and open an estate account once you have authority.
5. Notify creditors, pay valid debts and taxes, then distribute. In California, creditors generally have the later of four months from the issue of letters or 60 days after notice. Other states have their own periods.

Many states have a simpler route for small estates. New York allows voluntary administration where the personal property is worth $50,000 or less. See small estate probate and our overview of probate in the US.

Who inherits when there is no will?

Intestacy statutes list the heirs in order. Cornell's overview says a surviving spouse and children are typically given priority, followed by other close relatives such as parents and siblings, and that assets may escheat to the state if no relatives survive.

California shows how detailed the rules are. A surviving spouse receives half of the community property automatically. Of the separate property, the spouse gets all of it if there are no children, parents or siblings, half if there is one child (or no children but a parent or sibling), and a third if there are two or more children. The rest goes to children, then parents, siblings, grandparents and more distant relatives, in order, and a grandchild generally takes the share their dead parent would have received.

Two points that surprise people:

• Unmarried partners usually don't inherit. Cornell notes that most states have abolished common-law marriage (a few still recognize it), and intestacy statutes don't list unmarried partners. Registered domestic partners or civil unions may be treated like spouses in some states.
• Some property never enters the estate. A joint owner with survivorship takes the property automatically, and an account with a named beneficiary pays that person. Cornell's joint tenancy entry explains the survivorship rule. See payable on death accounts and who gets the house.

Can family members be liable for the debts?

In general, no. The FTC says debts are owed by and paid from the estate, and relatives usually aren't liable unless they co-signed, are a spouse in a state where that applies, or didn't follow probate rules when settling the estate. An administrator can be personally responsible if they distribute assets without due care in working out what the estate owes (IRS Publication 559). So don't give away belongings or money until the debts are known. Read more in debt when someone dies.

What if you are planning ahead?

A simple will lets you choose your executor, who inherits and who would care for your children, and a short written funeral wishes document guides the people who will arrange the service. Without them, the state's lists decide. It's one of the easiest ways to spare your family the steps in this guide.

What to do next

1. Ask the funeral home for its General Price List before you commit.
2. Look for a will, a funeral wishes document and any beneficiary or joint-ownership papers.
3. Contact the probate court clerk about appointing an administrator and about small-estate options.
4. Keep a folder of receipts and a log of every call.