Do You Need a Will? What Happens If You Don't Have One

Die without a will and you don’t get a say in who raises your kids or who ends up with your house — a state court does, running a formula written into your state’s probate code. Lawyers call this dying “intestate.” The process it kicks off tends to be slower, pricier, and further from what you actually wanted than most people assume. It hits immigrant families especially hard: there’s often no obvious next-of-kin nearby for the court to fall back on, and no paperwork anywhere proving who you’d have chosen instead. “I’ll get to it eventually” is a lot closer to “I need this now” than it feels.

What “intestate succession” actually means

Every state has an intestate succession statute — a default inheritance order that switches on automatically the moment someone dies without a valid will. There’s no single national rule here. Each state writes its own formula, and the differences matter more than most people expect.

Here’s the misconception that trips people up most: your spouse does not automatically inherit everything. In most common-law states, if you have kids, your estate splits between spouse and children by a fixed ratio — often something like the first $50,000-$100,000 plus half of whatever’s left going to the spouse, the rest divided among the kids. Community property states run a different formula entirely, and separate property (anything owned before the marriage, or inherited individually) follows its own set of rules on top of that.

What that means in practice: your spouse doesn’t get the house outright. They become a co-owner with your children, minors included — and a minor’s share gets locked into a court-supervised account until they turn 18. If your spouse later wants to sell or refinance, they may need court sign-off first, since a legal minor can’t consent to a real estate transaction.

None of this bends after the fact. The court applies the formula regardless of what you would have wanted, because there’s no will telling them otherwise.

Why this lands harder on immigrant families

Intestate succession statutes assume a fairly standard family shape — spouse, kids, maybe parents or siblings nearby, everyone reachable and everyone documented. Immigrant families often don’t fit that mold cleanly, and the same three gaps show up again and again.

No obvious next-of-kin. If a court can’t quickly find or reach your closest relatives — parents in India, siblings spread across two countries, or you’re the first generation in your family with any U.S. footprint at all — confirming and notifying heirs simply takes longer. Every extra country in the chain adds paperwork, translation, and delay.

Guardianship has to be named — it isn’t assumed. If you and your spouse both die, your U.S.-citizen kids don’t automatically go to grandparents in India or the aunt you’d have picked. A judge decides, choosing from whoever actually petitions for the role, and that pool may not include the people you trust most — especially if they’re overseas or don’t realize they need to act fast. Naming a guardian in your will isn’t just a time-saver. It’s often the only way your actual wishes end up on record at all.

Assets in different countries don’t resolve in one proceeding. A U.S. house, a 401(k), a bank account in India, maybe an NRE/NRO account — each can require its own separate legal process, because U.S. probate courts have zero authority over property or accounts held abroad. Without a will (and sometimes even with one, if the cross-border footprint is large enough), these turn into parallel proceedings your heirs have to juggle across two continents at once. That cross-border piece deserves its own article — we cover it in a companion piece on estate planning across two countries — but it starts from the same root problem: nothing on paper telling anyone what you wanted.

A worked example

Take an H1B-holding family: two working parents, two kids under 10, a $600,000 house with $350,000 left on the mortgage, and $150,000 combined across 401(k)/IRA balances. No will.

If one spouse dies: the surviving spouse doesn’t inherit the house and retirement accounts outright. Depending on the state, they might get the full house if it’s titled as joint tenancy with right of survivorship — a common way mortgaged homes are titled, which happens to sidestep intestate succession for that one asset — but any account titled solely in the deceased spouse’s name, without a current beneficiary designation, goes through probate and gets split by the state’s formula between spouse and kids. So a chunk of a $150,000 retirement balance could land in a court-supervised custodial account for two kids under 10, untouchable until they’re adults, instead of being available to the surviving parent for household bills right now.

If both spouses die: the house and retirement accounts head into probate — typically 6 to 18 months depending on the state and whether anyone contests it — while a judge separately works out who raises the kids. Two tracks, running at once, and whoever steps in to help has to manage both simultaneously, usually while also handling a funeral and grief. Legal fees for a contested or drawn-out intestate probate on an estate this size commonly land at $10,000-$25,000, paid out of the estate before any heir sees a dollar.

What a will changes: a will doesn’t just redirect who gets what — it swaps the formula out entirely for your own instructions. The house and any accounts with current beneficiary designations (401(k), IRA, life insurance) can often skip probate altogether, and the will covers everything else plus, critically, who raises the kids. Attorney fees for drafting a basic will for a family like this run roughly $300-$1,200 — a fraction of what a contested intestate probate later costs the estate.

What a basic will covers (and doesn’t)

A basic will typically handles three things: naming an executor to manage your estate, naming a guardian for minor children, and directing how property without its own transfer mechanism gets distributed.

What it does not override: beneficiary designations. Your 401(k), IRA, and life insurance policy each have their own beneficiary form on file with the plan administrator or insurer, and that form controls those assets no matter what your will says. This catches a lot of people off guard — you update your will after having kids, but if you never went back and updated the beneficiary form from when you were single and childless, the old form still wins. We go deeper on this beneficiary-override problem, especially where life insurance is concerned, in our piece on term life, whole life, and self-insurance.

A basic will also won’t set up ongoing management of assets for minor beneficiaries the way a trust can, won’t reduce estate tax exposure for larger estates, and doesn’t cover incapacity — you’d want a power of attorney and healthcare directive alongside it for that. But for most immigrant families with a house, some retirement savings, and young kids, a will covering guardianship and basic distribution is the single highest-leverage document to put in place first.

Getting started

You’ve got two realistic paths. An estate attorney will draft something tailored to your state’s rules, catch things like community property status or guardianship nomination language that generic templates miss, and typically charges $300-$1,200 for a basic will (more with a trust or added complexity). Online platforms like Trust & Will or LegalZoom run $150-$400 and work fine for straightforward situations — one house, nothing unusual, a clear guardian choice — but they’re less likely to flag state-specific wrinkles or cross-border complications.

Buying a house around the same time? Worth asking whether you actually need a real estate attorney for the purchase itself — some states require one at closing regardless — since that’s a natural moment to raise the will conversation while you already have a lawyer’s attention.

Either way, you’re not aiming for a perfect estate plan. You’re aiming to get a guardian nomination and basic asset distribution down on paper before the state’s default formula becomes the only plan you have.