What Happens to Retirement Accounts With No Will

Retirement accounts with no will are more common than most people think. Many people open a 401(k) or IRA at work and never write a will. If someone you love just died this way, take a breath. In most cases, the money is not lost. A will usually does not control these accounts anyway.

A form called a beneficiary designation does. That form names who gets the account when the owner dies. As a result, the account can often skip probate. Probate is the court process for settling a person’s debts and property. This guide explains what happens to retirement accounts with no will, what the IRS rules say, and what to do next.

Why a Will Usually Doesn’t Control a 401(k) or IRA

A 401(k), 403(b), or IRA is a “non-probate” asset. That means it passes by contract, not by will. When the owner opened the account, they likely filled out a beneficiary form. Whoever is named on that form typically gets the money directly. The plan or bank pays them after it receives a death certificate and a claim form.

For example, say a father dies without a will. His IRA names his daughter as beneficiary. She can usually claim it without going to court. However, his car and checking account may still need probate. As a result, retirement accounts with no will often move faster than everything else in the estate.

Workplace plans like a 401(k) add one more layer. A federal law called ERISA generally makes a married worker’s spouse the beneficiary. Someone else can be named only if the spouse signed a written waiver. That signature must be witnessed by a notary or a plan official. You can read this rule at 29 U.S.C. § 1055. IRAs are not covered by ERISA. However, community property states like California and Texas may still give a spouse rights.

When Retirement Accounts With No Will End Up in Probate

Problems start when no beneficiary is named. They also start when every named beneficiary has already died. In that case, the plan’s own rules decide. Many plans pay a surviving spouse first. Others pay “the estate,” which means everything the person owned at death. When the estate is the beneficiary, the money joins the probate process.

A person who dies without a will is called “intestate.” State law then picks the heirs in a set order. For example, under Uniform Probate Code § 2-102, a spouse often inherits everything. That applies when all the children are shared and no parent of the person survives. Each state writes its own version, so the exact shares vary.

Smaller estates may qualify for a shortcut. Many states let heirs use a simple sworn form, called an affidavit, instead of full probate. Accounts that already pay to a living beneficiary typically don’t count toward these limits.

How Taxes Work on Inherited Retirement Accounts

Money in a traditional 401(k) or IRA has never been taxed. As a result, whoever takes it out generally owes income tax on it. Roth accounts are different. Withdrawals are usually tax-free if the account was open at least five years.

The IRS rules depend on who inherits. A surviving spouse typically has the most choices, including rolling the account into their own IRA. Most other people, like adult children, must empty the account within 10 years. If the owner had already started required withdrawals, yearly withdrawals may also be needed. Required withdrawals currently begin at age 73. The IRS beneficiary guide explains each option.

Inheriting through the estate is often less flexible. If the owner died before age 73, the estate generally must empty the account within five years. If the owner was older, payouts may stretch over the owner’s remaining life expectancy. Missing a required withdrawal can bring a 25% excise tax. That drops to 10% if fixed quickly. For estate tax, the federal exemption is $15 million per person in 2026. In most cases, retirement accounts with no will won’t face federal estate tax.

What to Do Next With Retirement Accounts With No Will

Start small. First, order several certified copies of the death certificate. Next, call each plan or bank. Ask one simple question: “Who is the beneficiary on file?” Write down the answer, the date, and the person you spoke with.

Try not to cash out the account right away. A lump sum can create a large tax bill in one year. Instead, ask about moving it into an “inherited IRA.” Also ask whether the owner took this year’s required withdrawal. If not, the beneficiary may need to take it.

If the money goes to the estate, someone needs legal authority to claim it. With no will, the court appoints an “administrator.” That person does the job an executor would normally do. Your county probate court’s self-help center can explain the forms. For complex situations, check with a licensed attorney.

If you’re planning ahead, this is the easiest fix of all. Log in to each account and check your beneficiary form. Name a backup, called a contingent beneficiary. That one step keeps many families out of court.

Frequently Asked Questions

Does a 401(k) go to probate if there is no will?

Typically, no. If a living beneficiary is named, the plan pays that person directly. However, if no one is named, the money may go to the estate and pass through probate.

Can my spouse get my retirement account if I have no will?

In most cases, yes. Federal law generally makes a spouse the 401(k) beneficiary unless they signed a waiver. For IRAs, the beneficiary form controls, and many plans default to a spouse when no one is named.

What if the named beneficiary died before the account owner?

The plan looks for a backup beneficiary first. If there is none, the plan’s default rules apply. As a result, the account may go to the estate and then to heirs under state intestate law.

Sources & How to Verify

This guide is built from official sources. Always confirm the exact figure for your state:

• IRS — Estate & Gift Tax: irs.gov
• USA.gov — What to do when someone dies: usa.gov/death
• Uniform Law Commission (probate): uniformlaws.org
• Cornell Legal Information Institute: law.cornell.edu
• Your state’s probate court self-help portal and revenue department for the current statute and dollar figures.

Verified October 2026. Estate figures change — if you spot anything outdated, please contact us.

Related Guides

• Probate by State
• Dying Without a Will by State
• Small Estates & Avoiding Probate by State
• Plain-English Estate Glossary

Disclaimer. This page is for general information only and is not legal or tax advice. Wills, probate, and estate-tax rules vary by state, county, and situation, and change over time. We are not a law firm, tax advisor, or financial planner, and we assume no liability for accuracy or completeness. For your specific situation — especially an active probate or a tax deadline — verify with your state’s court, statute, revenue department, or a licensed attorney in your state.