A parent died without a will — and if that just happened in your family, you may be feeling overwhelmed. Take a breath. This situation is more common than you think, and every state has a clear legal process to handle it. You are not alone, and there is a path forward. When a parent died without a will, the state’s “intestacy” laws step in and decide who inherits what. It is not a crisis. It is a process, and you can take it one step at a time.
Where You Stand: A Parent Died Without a Will
When a parent died without a will, the legal term is “intestate.” Every state has intestacy laws. These laws create a default plan for who gets what. Typically, a surviving spouse and children are first in line. However, the exact shares vary widely from state to state. For example, in some states a surviving spouse inherits everything. In others, the spouse splits the estate with the children.
The table below shows how five large states divide property when a parent died without a will and is survived by a spouse and children from that marriage.
| State | Surviving Spouse’s Share | Children’s Share |
|---|---|---|
| California | All community property; one-half of separate property | Other half of separate property, split equally |
| Florida | 100% (if all children are also the spouse’s children) | Nothing (unless a child is from another relationship — then 50/50) |
| New York | First $50,000 plus one-half of the balance | Remaining balance, split equally |
| Pennsylvania | First $30,000 plus one-half of the balance | Remaining balance, split equally |
| Tennessee | Equal share with children (but no less than one-third) | Equal shares with spouse |
As a result, two families in different states can end up with very different outcomes. If your parent lived in one state but owned property in another, both states’ laws may apply. Check with the probate court in each state where property is located.
What to Do First (Step by Step)
If a parent died without a will, here is a simple order of steps. First, obtain several certified copies of the death certificate from the county vital records office — you will need them for banks, insurers, and the court. Second, secure the home and any valuables. Third, contact the probate court in the county where your parent lived. Ask the clerk for the intestate petition forms. In most cases, you or another family member can file to be appointed as the estate’s “administrator.”
Fourth, once the court appoints you as administrator, open an estate bank account. All of the parent’s bills, final expenses, and income should flow through this account. Fifth, notify creditors. States give creditors a limited window to file claims against the estate — typically three to twelve months, depending on the state. For example, Indiana allows 3 months, Illinois allows 6 months, and Massachusetts allows 1 year. After the creditor period closes, you can distribute the remaining assets to the heirs.
How to Protect Yourself and Keep Records
When a parent died without a will, record-keeping becomes your best friend. Gather every financial document you can find: bank statements, mortgage papers, car titles, insurance policies, tax returns, and retirement account statements. Make copies of everything before you hand originals to the court or an attorney.
Keep a written log of every dollar spent on behalf of the estate. The court will eventually require an accounting. Save receipts for funeral costs, utility bills, storage fees, and any repairs to property. If you pay estate expenses out of your own pocket, note the date and amount — the estate can reimburse you.
Get everything in writing. If a sibling agrees to let you keep a piece of furniture, put it in an email or a signed note. Verbal agreements during grief can lead to disputes later. A simple written record protects everyone. Typically, the probate court provides forms for inventory and accounting — ask the clerk.
Small Estates: You May Be Able to Skip Probate
Even when a parent died without a will, many states let families skip formal probate if the estate is small enough. This is done through a “small estate affidavit” — a simple sworn statement filed with the court or given directly to the bank or institution holding the asset. The dollar limits vary by state.
| State | Small Estate Limit | Waiting Period After Death |
|---|---|---|
| California | $208,850 | 40 days |
| Texas | $75,000 | 30 days |
| Michigan | $53,000 | 28 days |
| Washington | $100,000 | 40 days |
| West Virginia | $50,000 | 30 days |
If your parent’s probate assets fall below your state’s threshold, the small estate process can save months of time and hundreds of dollars in court fees. However, real estate usually cannot pass through a small estate affidavit — check your state’s rules carefully.
When to Get Help (Probate Court or an Attorney)
For many families, the probate court’s self-help desk is the best free starting point. Most county courts have staff who can hand you the right forms and explain the process. They cannot give legal advice, but they can point you in the right direction. Many state court websites also offer free step-by-step guides for intestate estates.
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You may want to consult a licensed attorney if the estate includes real estate in multiple states, if there is a dispute among siblings, if creditors are making large claims, or if the estate may owe federal estate tax (which in 2026 applies only to estates exceeding $15,000,000). For most families, federal estate tax will not be an issue.
If you cannot afford an attorney, look for free legal aid in your area. Search “legal aid” plus your state or county name. Many bar associations offer a free 30-minute consultation for probate matters. When a parent died without a will and family tensions are high, even a short conversation with an attorney can prevent a much more expensive dispute later.
Frequently Asked Questions
Does everything automatically go to the surviving spouse when a parent died without a will?
Not always. In most cases, the surviving spouse receives a large share, but children often inherit a portion too. The exact split depends on your state’s intestacy law. For example, in New York the spouse gets the first $50,000 plus half the rest — the children split the remainder.
How long does the probate process take when a parent died without a will?
It depends on the estate’s size and complexity. Simple estates with no disputes typically take 6 to 12 months. However, estates with real estate, creditor claims, or family disagreements can take longer. The creditor claim period alone can run 3 to 12 months depending on the state.
Can a parent died without a will still leave behind a life insurance policy or retirement account that avoids probate?
Yes. Life insurance policies, retirement accounts (like 401(k)s and IRAs), and bank accounts with named beneficiaries pass directly to those beneficiaries. They do not go through probate, regardless of whether a will exists. However, if no beneficiary was named or the beneficiary is deceased, those assets may fall back into the probate estate.
Where to get real help, free or low-cost
You do not have to figure this out alone, and you do not need to buy anything to get started. Your state’s probate court usually has a self-help desk, and free legal aid can walk you through the next steps.
- Your state probate (or surrogate’s) court: search “[your state] probate court self-help” for free forms and instructions.
- Free legal aid: lawhelp.org — find free and low-cost legal help in your state.
- Eldercare and benefits help: eldercare.acl.gov — connects families with local support.
Sources & How to Verify
The information on this page is drawn from official government and court sources. Estate, probate, and tax rules change, so always confirm the exact figure with your state’s court, statute, or a licensed attorney.
- IRS — Estate Tax: irs.gov — federal estate-tax rules and exemption
- Find free legal help: lawhelp.org — free and low-cost legal aid in your state
- Cornell Legal Information Institute: law.cornell.edu/wex — plain-English legal definitions
- Your state probate code & court self-help portal: search “[your state] probate code” and “[your state] probate court self-help” for the exact law and forms
Content last reviewed June 2026. If you notice outdated information, please contact us.
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Informational only — not legal or tax advice. Wills Probate Guide is an independent educational resource, not a law firm, tax advisor, or financial planner, and this page does not provide legal or tax advice. Estate, probate, and tax rules vary by state and change over time, so always verify the exact rule with your state’s probate code, your local probate court’s self-help portal, or a licensed attorney. For urgent matters like an active probate or a tax deadline, contact a licensed attorney in your state right away.