No Will?

This page answers the question, “What happens when a person dies without a will?” Before proceeding, some definitions are in order:

  • The law calls a deceased person a “decedent.”
  • When a decedent leaves a will, the decedent is said to have died “testate,” meaning he or she left a last will and testament.
  • When a decedent did not have a will, he or she is said to have died “intestate.”

The “intestacy” statutes specify who receives the property of an intestate decedent.

The short answer to the question, then, is that the estates of intestate decedents are subject to what amounts to a “default will” made by the state in the form of the intestacy statutes.

Readers may be wondering: “If this is so, why does anyone need a will?” The answer is: The state’s one-size-fits-all scheme of property distribution may not fit specific situations very well. This is particularly true in the case of families with minor children, as discussed in more detail below.

A common misconception is that all property of an intestate decedent passes directly to a surviving spouse. The fact is, under Missouri law, an intestate decedent’s surviving spouse receives the entire estate only if the decedent had no surviving children. If the decedent had children who survive, the surviving spouse receives:

  • The first $20,000 of the estate, plus half the balance of the estate, if all of the decedent’s surviving children are also children of the surviving spouse.
  • Half of the estate if there are surviving children of the deceased spouse, one or more of whom are not children of the surviving spouse.

It is important to note, however, that the surviving spouse’s rights to receive property are augmented by the “spousal rights” discussed on the Spousal Rights page.

Any part of an intestate estate not distributed to a surviving spouse, or the entire estate if there is no surviving spouse, is distributed as follows:

  • First, to the decedent’s children or their descendants
  • Next, if there are no children or their descendants, to the decedent’s father, mother, and brothers and sisters, or their descendants, in equal shares
  • Next, if none of the above-mentioned persons survive, to the decedent’s grandfathers, grandmothers, and uncles and aunts, or their descendants, in equal shares
  • Next, if none of the above-mentioned persons survive, to the decedent’s great-grandparents, or their descendants, in equal shares
  • Next, to the nearest lineal ancestors and their children and descendants in equal shares, subject to the qualification that collateral relatives (those who are neither ancestors nor descendants of the decedent) cannot inherit unless they are related to the decedent at least as closely as the ninth degree, which is computed by counting upward from the decedent to the nearest common ancestor and then downward to the relative, the degree on kinship being the sum of these two counts (for example, brothers are related in the second degree)
  • Next, if there is no surviving spouse or kindred of the decedent entitled to inherit, to the kindred of the decedent’s spouse as if the decedent’s spouse had survived the decedent
  • Finally, if no person is entitled to inherit as set out above, to the State of Missouri

As can be seen, in the case of a family with minor children, this statutory scheme could result in the children inheriting some of the property of a deceased parent, which is contrary to most parents’ desire that the surviving parent receive all property with the expectation that he or she will provide for the children.

Also, inheritance of property by children under 18 is undesirable because it requires the establishment of a conservatorship estate to manage the property for the children under the supervision of the Probate Division, with attendant time, expense and complications (see the Guardian and Conservator page).

In summary, if the intestacy statutes do not coincide with a person’s desires for disposition of property upon death, the person should make a will, execute a trust, and/or use other techniques outlined on the Other Techniques page.

Copyright © Scott Law Firm Professional Corporation


Estate planning, probate, business formation and maintenance, contracts, real estate transactions, and name changes