What Does “Dying Intestate” Mean?
When someone dies without a valid will in New Jersey, the legal term is “dying intestate.” It means the state — not you — decides who gets your assets, who manages your estate, and in many cases, who raises your children. New Jersey’s intestacy laws follow a rigid set of rules based on family relationships, regardless of what you may have wanted or verbally communicated during your lifetime.
Who Gets What Under New Jersey Intestacy Law
New Jersey’s intestate succession laws are found in Title 3B of the New Jersey Statutes. The rules depend on which family members survive you:
If you have a spouse and no children (or children only with that spouse): Your spouse receives the entire estate.
If you have a spouse and children from a different relationship: Your spouse receives the first 25% of the estate (but not less than $50,000 or more than $200,000), plus half of the remaining balance. Your children split the rest.
If you have children but no spouse: Your children inherit everything in equal shares. If a child has already died, their share passes to their own children (your grandchildren).
If you have no spouse and no children: The estate goes to your parents. If your parents are deceased, it goes to your siblings. If no siblings, it continues up and out through your family tree — grandparents, aunts, uncles, cousins — in a specific order defined by statute.
If no relatives can be found: The estate “escheats” to the State of New Jersey. This is rare, but it happens.
The Probate Process Without a Will
Without a will, your estate still goes through probate — but the process is typically longer and more complicated. Instead of an executor named in your will, the Surrogate’s Court appoints an “administrator.” New Jersey law gives preference to the surviving spouse, then to children, then to other next of kin.
The administrator must post a bond (a type of insurance policy protecting the estate), gather and inventory all assets, notify creditors, pay debts and taxes, and distribute what remains according to the intestacy statute. Creditors have nine months to file claims against the estate.
A straightforward intestate estate in New Jersey typically takes about 12 months to settle. Complex estates — or those with disputes among heirs — can take significantly longer.
What Happens to Your Children
For parents of minor children, this is the most important issue. Without a will, you cannot designate a guardian for your children. If both parents die without a will, the court decides who raises your kids. A judge — who has never met your family — will appoint a guardian based on what the court determines is in the child’s best interest.
Family members may disagree about who should have custody, leading to a contested guardianship proceeding that is public, expensive, and emotionally damaging. A simple will with a guardian designation avoids all of this.
What a Will Does That Intestacy Cannot
A will gives you control over decisions that intestacy laws handle with a one-size-fits-all formula:
Choose who inherits. Want to leave something to a close friend, a charity, or a stepchild? Intestacy won’t do that — only blood relatives and legal spouses inherit under the statute.
Choose who manages your estate. You can name an executor you trust rather than leaving it to the court.
Name a guardian for your children. This alone is reason enough for every parent to have a will.
Specify how and when beneficiaries receive assets. You can create trusts within your will for minor children, set age conditions, or structure distributions over time.
Minimize family conflict. A clear, properly drafted will reduces the likelihood of disputes among family members.
The Bottom Line
Dying without a will in New Jersey means the state makes every important decision about your estate, your assets, and potentially your children. The probate process takes longer, costs more, and produces outcomes that may not reflect your wishes at all.
A will is one of the simplest and most affordable legal documents you can create — and one of the most important. If you don’t have one, the time to act is now.
Schedule a free consultation with Jeffrey Papola, Esq. to discuss your estate planning needs. Papola Law helps New Jersey families create wills, trusts, and comprehensive estate plans — in plain English, with no pressure.