When a New Jersey resident dies without a valid will, the estate passes by intestate succession — a statutory order of inheritance set out in N.J.S.A. 3B:5-1 through 3B:5-14. In plain terms, the State of New Jersey writes a default will for anyone who failed to write one themselves, and the County Surrogate appoints an administrator (instead of an executor) to settle the estate. Who inherits, and in what shares, depends entirely on which relatives survive the decedent — not on what anyone believes the deceased “would have wanted.”
I have sat across the table from more grieving families than I can count who assumed that without a will, “everything just goes to the spouse.” Sometimes that is true. Often it is not. Below is how probate without a will actually plays out in New Jersey, with particular attention to the smaller estates that make up the bulk of these cases.
What “intestate” means in New Jersey
A person who dies leaving a valid will dies testate. A person who dies with no will — or with a will a court refuses to admit — dies intestate. New Jersey’s intestacy statute then controls the distribution of everything that would have passed under a will: solely-owned bank accounts, a house titled in the decedent’s name alone, vehicles, personal belongings, and the like.
Two important things the intestacy statute does not touch:
- Non-probate assets. Life insurance, retirement accounts (IRAs, 401(k)s), and “payable on death” or “transfer on death” accounts pass to the named beneficiary regardless of intestacy. So does property held as joint tenants with right of survivorship or as tenants by the entirety between spouses.
- Assets in a living trust. Property a person transferred into a revocable living trust during life is governed by the trust document, not by the intestacy statute, and generally skips probate entirely.
This distinction matters enormously. I have handled estates where the “estate” subject to intestacy was a few thousand dollars in a checking account, because the house was held jointly and the brokerage account had a TOD beneficiary. The headline assets never touched the Surrogate’s Court at all.
Who inherits when there is no will
New Jersey’s order of intestate succession follows family proximity. The exact shares are set by statute, and the most common scenarios are worth spelling out, because the results surprise people.
Surviving spouse or civil/domestic partner
Under N.J.S.A. 3B:5-3, the share of a surviving spouse (or registered domestic/civil union partner) depends on who else survives:
- If all of the decedent’s children are also children of the surviving spouse, and the spouse has no other children: the spouse takes the entire estate.
- If the decedent left a surviving parent but no descendants: the spouse takes the first 25% of the estate (not less than $50,000 nor more than $200,000), plus three-quarters of the balance; the parent(s) take the rest.
- If the decedent had children who are not children of the surviving spouse, or the surviving spouse has other children: the spouse takes the first 25% (again, the $50,000–$200,000 floor and cap apply) plus one-half of the balance, and the descendants share the remainder.
That blended-family rule is the one that catches people off guard. A man with two children from a prior marriage who remarries and never writes a will does not leave everything to his new wife by default — his children take a substantial share.
No surviving spouse
If there is no surviving spouse or partner, the estate passes (per N.J.S.A. 3B:5-4) in this descending order: to the decedent’s descendants by representation; if none, to parents equally; if none, to descendants of the parents (siblings, then nieces and nephews); then to grandparents and their descendants. New Jersey distributes among descendants “by representation,” a per-capita-at-each-generation method defined in N.J.S.A. 3B:5-5.
Only when no relative can be found within these classes does the property “escheat” to the State — a genuinely rare outcome.
The elective share survives intestacy too
It is worth knowing that New Jersey protects surviving spouses even beyond intestacy. Under the elective share statute, N.J.S.A. 3B:8-1, a surviving spouse who was not living separate and apart in circumstances giving cause for divorce may claim one-third of the augmented estate. The elective share most often comes up when a will disinherits or short-changes a spouse, but the statute is part of the same protective framework. In a pure intestacy case the spouse’s statutory share usually equals or exceeds the elective share, so it rarely needs to be invoked — but a knowledgeable attorney always checks.
How probate without a will actually works at the County Surrogate
New Jersey is, mercifully, one of the more streamlined probate states. Each of the 21 counties has an elected Surrogate whose office handles the appointment of personal representatives. When there is no will, someone — usually the surviving spouse or an adult child — applies to the Surrogate to be appointed administrator.
The general process looks like this:
- Eleven-day waiting period. By statute, the Surrogate cannot issue administration until at least 11 days have passed since the death.
- Application and surety bond. Unlike an executor named in a will, an administrator in an intestate estate is ordinarily required to post a surety bond under N.J.S.A. 3B:15-1, protecting the heirs and creditors. The bond amount tracks the value of the estate.
- Renunciations. If other heirs of equal rank exist, they typically sign renunciations consenting to the applicant’s appointment.
- Letters of Administration. The Surrogate issues “Letters,” the official document that gives the administrator authority to collect assets, pay debts and taxes, and distribute the remainder according to the intestacy statute.
From there, the administrative duties mirror those of any estate: notice to heirs and beneficiaries, settling creditor claims, and ultimately distributing what remains. For a broader explanation of how different probate tracks operate in a neighboring jurisdiction, the team at Morgan Legal explains , which is a useful contrast to New Jersey’s Surrogate-driven model.
Small estates and summary administration in New Jersey
Because so many intestate estates are modest, New Jersey provides simplified procedures that let families avoid full administration entirely. These are the cases our office focuses on, and they save real time and money.
When there is a surviving spouse or partner
Under N.J.S.A. 3B:10-3, if a person dies intestate leaving a surviving spouse, civil union, or domestic partner, and the value of the real and personal assets does not exceed $50,000, the survivor may take the entire estate without formal administration. Instead of opening an estate, the spouse files an affidavit with the Surrogate. No bond, no Letters, no full proceeding.
When there is no surviving spouse
Under N.J.S.A. 3B:10-4, if there is no surviving spouse or partner and the estate’s value does not exceed $20,000, one of the heirs may, with the written consent of the remaining heirs, file an affidavit to receive the assets — again, without formal administration.
These thresholds are the heart of summary administration. A typical example: a widowed parent dies intestate with $14,000 in a checking account and a paid-off car, no spouse, and three adult children. One child, with the siblings’ consent, files an affidavit under 3B:10-4 and the bank releases the funds. No bond, no months-long proceeding. When the numbers fit, the affidavit route is almost always the right call.
A word of caution: the dollar limits are tied to the value of the probate estate, and the analysis can turn on how assets are titled and whether real property is involved. Misjudging it — for instance, treating jointly-held property as part of the estate, or overlooking a creditor — can create personal liability for the person who files. This is exactly the kind of judgment call where a short consultation pays for itself. You can reach our New Jersey probate team if you are unsure which track applies.
Special situations that complicate intestacy
Even straightforward-looking estates can carry traps:
- Minor heirs. If a child entitled to inherit is a minor, the funds generally cannot be paid outright; the court may require a guardian of the property or a structured arrangement, which adds time and oversight.
- Adopted and posthumous children. Legally adopted children inherit as natural children. A child conceived before but born after the decedent’s death also inherits if born within the statutory period.
- Half-blood relatives. Under N.J.S.A. 3B:5-12, relatives of the half blood inherit the same as those of the whole blood — a frequent point of confusion among siblings.
- Disputes among heirs. Intestacy does not eliminate conflict; it can invite it, especially in blended families. When heirs disagree about who should administer the estate or how assets are valued, litigation may follow. For an overview of how these fights unfold, see Morgan Legal’s discussion of .
The lesson: planning prevents the default
Intestate succession is a safety net, not a plan. It cannot account for stepchildren you raised, a partner you never formally married, a charity you cared about, or a special-needs heir who should not receive funds outright. The tools that prevent intestacy are well established in New Jersey law: a properly executed last will and testament, and for many families a revocable living trust that holds assets outside of probate altogether.
Equally important are the documents that protect you while you are alive. A durable power of attorney lets a trusted agent manage your finances if you become incapacitated, and an advance directive for health care (New Jersey’s living will and health care proxy) names someone to make medical decisions and records your wishes. Without these, families end up in guardianship proceedings — the living-person equivalent of intestacy. Our colleagues across state lines handle the same issues; you can review the affiliated Florida probate practice for comparison, but New Jersey residents should plan under New Jersey law.
If a loved one has died without a will, or you want to make sure your own estate never falls to the default rules, the right next step is a focused conversation about which procedure fits your facts — full administration, a small-estate affidavit, or a plan that avoids probate altogether. Learn more about our New Jersey probate services or contact the firm directly.
Frequently Asked Questions
Who inherits if my spouse dies without a will in New Jersey and we have children together?
If all of the decedent’s children are also your children and you have no other children, you inherit the entire probate estate under N.J.S.A. 3B:5-3. The result changes if there are children from another relationship or a surviving parent, in which case you share the estate.
Does everything go through probate when someone dies without a will?
No. Only solely-owned probate assets pass by intestate succession. Life insurance, retirement accounts with named beneficiaries, payable-on-death accounts, jointly-titled property, and assets held in a living trust pass outside probate regardless of whether there is a will.
What is the small estate limit in New Jersey?
If there is a surviving spouse or partner and the estate is worth $50,000 or less, the survivor can claim it by affidavit without formal administration (N.J.S.A. 3B:10-3). With no surviving spouse, the limit is $20,000 and requires the other heirs’ written consent (N.J.S.A. 3B:10-4).
Who becomes the administrator of an intestate estate?
The County Surrogate appoints an administrator, usually the surviving spouse or an adult child. Other heirs of equal rank typically sign renunciations consenting to the appointment, and the administrator generally must post a surety bond before receiving Letters of Administration.
Can intestate succession leave a stepchild or unmarried partner with nothing?
Yes. New Jersey intestacy only recognizes legally defined relatives. A stepchild who was never adopted and an unmarried partner who is not a registered civil union or domestic partner generally inherit nothing unless named in a will, trust, or beneficiary designation.
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