What Is a Child Entitled to When a Parent Dies Without a Will?

Losing a loved one—especially a parent—is an emotionally challenging experience, further complicated by financial uncertainties if they don’t have an estate plan. In such cases, the parent's estate is considered intestate, which means the assets will be distributed according to the state's laws of succession as part of the probate court process.

Typically, surviving spouses have the first claim, followed by children—but the specifics depend on the local intestate succession laws. These laws can be complex and vary by state, but the basics ring true everywhere. Knowing what to expect will help you manage the inheritance process smoothly, so let’s dive in.

Typical entitlements for children when a parent dies without a will

When a parent dies without a will, the court usually transfers the estate to their next of kin (i.e., the parent’s closest living relative).

The typical order of priority is as follows: 

1. Spouse. If a surviving spouse exists, they generally inherit most, if not all, of the estate, with any remainder divided among the children. 
2. Children. If there is no surviving spouse, the children (adopted or biological) typically inherit the entire estate equally.
3. Other relatives. If there are no children or a surviving spouse, the deceased’s grandchildren, parents, or siblings may inherit the estate. 

This doesn’t necessarily mean that children inherit nothing if their deceased parent has a surviving spouse. Each state has unique laws that determine who inherits the estate, and several of them split the property between the deceased’s spouse and children.

For instance, New York intestate law says the first $50,000 of the parent’s property goes to their spouse. The remainder is split down the middle, with half going to the spouse and the other half being divided among the children.

As another example, California law distinguishes between community property (i.e., acquired during marriage) and separate property (i.e., acquired before marriage). Here, the spouse inherits all of the community property and up to half of the separate property. If there’s one child, they get the other half of the separate property. With two or more children, the spouse’s share of separate property drops to one-third, and the children inherit two-thirds. On the other hand, Florida probate code automatically distributes all property to the spouse, even if the deceased has children. 

As you can see, each state handles the estate distribution process differently, though spouses often have the largest claim. Still, the typical entitlements for children when a parent dies without a will ultimately depend on the jurisdiction’s intestate succession laws. 

What is intestate succession? 

Before any relatives inherit the estate, the deceased person's property goes through probate. When there is no will—known legally as intestacy—the probate court must decide the best way to divide the estate. This process is known as intestate succession, where the court makes its own decision about how to distribute assets according to state law.

First, an heir (usually a spouse, child, or close relative) of the deceased will initiate the probate court process. The probate court then appoints a personal representative who must pay off the deceased’s personal debts before any property can be distributed to the next of kin. Once the financials are in order, the court can divide the remaining assets according to state law.  

As the previous examples show, these laws vary significantly from state to state. However, all probate courts typically distribute property depending on the following factors: 

• Whether or not there is a surviving spouse 
• The number of children (biological and adopted)
• Other family members

Every state is different, so it’s best to review your state’s intestate succession laws or consult a professional to determine the most likely outcome for your situation. 

What assets are excluded from intestate succession?

Not all assets are subject to intestate succession laws and may bypass the probate process entirely. Examples of these assets include the following: 

• Life insurance policies. Policies with a named beneficiary ensure the proceeds go directly to the designated individual. 
• Retirement accounts. Accounts such as IRAs and 401(k)s with named beneficiaries are dispersed according to the terms of the account. 
• Transfer-on-death (TOD) accounts. Securities and other accounts designated as transfer-on-death will follow the specified instructions. 
• Payable-on-death (POD) accounts. These bank accounts transfer to the named beneficiary upon the account holder’s death. 
• Living trusts and irrevocable trusts. Assets held in these trusts bypass probate and go to the beneficiaries named in the trust documents. 
• Jointly owned property. Real estate owned as joint tenancy with the right of survivorship or tenants by the entirety automatically passes to the surviving owner. 
• Pension plans and annuities. These often have named beneficiaries and transfer directly to them. 
• Health savings accounts (HSAs) and medical savings accounts (MSAs). These accounts transfer to named beneficiaries upon the account holder’s death.
• Vehicles with a TOD registration. Vehicles with this designation automatically transfer to the named beneficiary.

Since intestate succession does not apply to these assets, it’s critical to designate beneficiaries for assets that allow for it. That way, they receive the assets directly without the potential delays and complications of probate. 

Special considerations for children

When a parent dies without a will, the court may give special consideration to different types of children. Here are a few examples: 

Minor children

In some cases, the court may need to appoint a legal guardian to raise a minor child if no relatives step forward. This guardian may also be responsible for managing their inheritance and covering expenses like education, healthcare, and other living necessities until the child becomes an adult. 

Adopted children

Under intestate succession laws, adopted children have the same inheritance rights as biological children. The legal adoption process effectively creates the same parent-child relationship in the eyes of the law, regardless of biological ties. 

However, when a child gets adopted, the biological parent transfers their rights and can no longer claim the child as theirs. As a result, the adopted child would have no entitlement to their biological parent’s estate if they die without a will. 

Stepchildren

Stepchildren don’t normally inherit from a stepparent’s estate per intestate succession laws. To counter this, stepparents who wish to provide for their stepchildren should consider adoption or draft a will. Otherwise, the court likely won’t give stepchildren any consideration when distributing the deceased stepparent’s assets. 

Give your family peace of mind with an estate plan

When dealing with the loss or expected loss of a parent, the last thing you want is uncertainty about what you might inherit. However, without a will, a child’s inheritance is at the mercy of complex legal processes and state-specific regulations.

While a probate court will try to work in everyone’s best interests, the best route is to create a will or trust. You should consider getting it done with the help of an attorney who specializes in estate planning. This approach provides clarity, reduces stress, and avoids potential disputes down the road, as a lawyer helps ensure all legal details are handled correctly and comprehensively.

So, make sure your affairs are in order and encourage your loved ones to set up an estate plan today. 

FAQs

Still have questions about a child’s entitlements if their parent dies without a will? Here are some of the most common topics readers ask about: 

Who is first in line for inheritance?

In the absence of a will, the surviving spouse is typically first in line to inherit their deceased partner’s assets. If the deceased person does not have a spouse, their children will inherit the estate, and in the case that they have no children, the estate is divided among family members. Still, the exact distribution can vary by state, with specific rules for different family scenarios. 

Does the oldest child inherit everything?

No, the oldest child does not automatically inherit everything when a parent dies without a will. Intestate succession law generally divides the estate equally among all children, assuming no spouse exists. While the specifics depend on the state, most jurisdictions don’t give preference to the oldest child. 

What debts are forgiven at death?

Generally, most debts are not forgiven at death. Instead, the deceased's personal representative pays off any outstanding debts before any heirs can receive their inheritance. Depending on the state, however, debt collectors for certain types of unsecured debts, such as federal loans or medical bills, can’t necessarily take action against the deceased’s family. 

Can property be transferred without probate?

Yes, some types of property can be transferred without probate. Examples include assets held in joint tenancy, payable-on-death (POD) accounts, transfer-on-death (TOD) registrations, and life insurance proceeds. These methods allow for direct transfer to beneficiaries, bypassing the probate process and simplifying asset distribution. 

What should you do when a parent dies without a will? 

When a parent dies without a will, gather important documents, notify family members, and contact an attorney (such as an estate lawyer) to begin the probate process. The court will appoint an administrator (usually the surviving spouse or adult children) to distribute assets according to the state’s intestate succession laws.