Dying without a Will: Statutory Succession Rules
When a person dies without a valid last will and testament, the law of the relevant jurisdiction determines who inherits and in what shares. These rules are referred to as statutory succession or intestate succession. They differ considerably between jurisdictions that lie only a few miles apart, and more considerably still between the United States and Germany. This page sets out the common structure, compares the five jurisdictions in which the firm’s attorneys are licensed, and refers to a separate page for each of them: Maryland, Virginia, the District of Columbia, California and Germany.
Summary
- Statutory succession governs only property that passes through the estate. Joint property with a right of survivorship, assets with a named beneficiary and trust assets pass under their own terms.
- American law applies the law of the place where real estate lies and the law of the domicile to movable property. German courts apply the law of the last habitual residence, but accept an American state’s reference to the law of the place where real estate lies.
- The surviving spouse receives between one-quarter and the entire estate, depending on the jurisdiction, the descendants who survive and, in Germany, the marital property regime.
- In the American jurisdictions a court appoints an administrator. In Germany the heirs succeed directly and jointly, and prove their title with a certificate of inheritance.
- A statutory division takes no account of tax, and may give rise to Maryland inheritance tax, state estate tax at the first death and German inheritance tax.
Part I. What statutory succession governs
Every jurisdiction provides a default order of heirs for the property of a person who leaves no valid will. In the United States, the statute reaches only the probate estate, that is, the assets held in the decedent’s sole name. Real estate held by spouses as tenants by the entirety or with a right of survivorship, accounts with payable-on-death or transfer-on-death designations, life insurance, retirement accounts and assets held in a revocable trust pass to the surviving owner or the named beneficiary, irrespective of the statute.
German law proceeds from a different principle. The estate passes as a whole to the heirs at the moment of death (§ 1922 BGB), and there is no survivorship title comparable to a joint tenancy, so that a co-ownership share in German real estate passes to the statutory heirs. The firm’s page on asset planning using joint titles describes the limits of relying on title alone.
Part II. Which law applies
Maryland, Virginia, the District of Columbia and California follow the traditional American conflict rule. Succession to real estate is governed by the law of the place where the land lies, and succession to movable property, such as bank accounts, securities and personal effects, by the law of the decedent’s domicile at death (Restatement (Second) of Conflict of Laws §§ 236 and 260; Cal. Civ. Code § 946). A person domiciled in Maryland who owns a house in California therefore leaves the house under California law and the remaining property under Maryland law, and the California property ordinarily requires an ancillary proceeding in California.
German courts apply the EU Succession Regulation (Regulation (EU) No 650/2012), which subjects the entire estate to the law of the decedent’s last habitual residence (Art. 21), unless the decedent chose the law of a nationality (Art. 22). Where that law is the law of an American state, the Regulation accepts the state’s reference to the law of the place where real estate lies (Art. 34(1)(a)). German real estate of a person domiciled in the United States therefore passes under German statutory succession.
For a person habitually resident in Germany, the German court applies German law to the entire estate, including American real estate, while the American court applies its own statute to that real estate. The two courts may then identify different heirs for the same property.
Part III. The surviving spouse
The spouse’s share is the point on which the five jurisdictions diverge most. The table below compares the principal family situations. For California, the table shows the share of the decedent’s separate property; the decedent’s half of community property and of quasi-community property passes to the surviving spouse in every case (Cal. Prob. Code § 6401(a) and (b)). For Germany, the table assumes that the spouses lived under the German statutory property regime of community of accrued gains (Zugewinngemeinschaft), under which the spouse’s statutory share of one-quarter or one-half is increased by a further quarter (§§ 1931 and 1371 BGB).
| Family situation at death | Maryland | Virginia | District of Columbia | California (separate property) | Germany |
|---|---|---|---|---|---|
| Descendants, all of them also the spouse’s; all adult | Entire estate | Entire estate | Two-thirds; one-half if the spouse has descendants from another relationship | One-half with one child; one-third with two or more | One-half |
| Descendants, all of them also the spouse’s; a minor child survives | One-half | Entire estate | As in the row above | As in the row above | One-half |
| At least one descendant who is not the spouse’s; no minor child | $100,000 plus one-half of the balance | One-third | One-half | As in the first row | One-half |
| No descendants; one or both parents survive | Entire estate | Entire estate | Three-quarters | One-half | Three-quarters |
| No descendants, parents, siblings or descendants of siblings | Entire estate | Entire estate | Entire estate | Entire estate | Three-quarters if a grandparent survives; otherwise the entire estate |
In Maryland, the result depends on whether any child is under 18 at the date of death. In Virginia, only the decedent’s descendants from another relationship reduce the spouse’s share. In California, the character of each asset as community or separate property determines the result. In Germany, the additional quarter depends on German matrimonial property law; where the spouses’ property relations are governed by the law of an American state, the spouse of a decedent with children may receive no more than one-quarter of the German estate.
In Maryland, the District of Columbia and California, a registered domestic partner holds the position of a spouse, as does a registered life partner in Germany (§ 10 LPartG). A partner who is neither married nor registered inherits nothing under any of the five statutes.
Part IV. Descendants, other relatives and the state
In all five jurisdictions, whatever does not pass to the spouse passes to the decedent’s descendants in equal shares, with the descendants of a predeceased child taking that child’s share. Where no descendant survives, the estate passes to the parents and then to the siblings and their descendants, and beyond that to more remote relatives according to the rules of each jurisdiction. Germany applies a strict system of orders, under which any relative of an earlier order excludes every relative of a later order (§ 1930 BGB). Where no heir exists, the estate passes to the state: the county board of education in Maryland, the Commonwealth of Virginia, the District of Columbia, the State of California (Cal. Prob. Code § 6800) or, in Germany, the federal state of the last residence (§ 1936 BGB). Maryland admits stepchildren before that point, California only in narrow circumstances, and Germany not at all.
Part V. Administration and taxes
The table below summarizes the principal procedural and tax differences. For the four American jurisdictions, the federal estate tax applies in addition, with a basic exclusion amount of $15,000,000 for deaths in 2026.
| Rule | Maryland | Virginia | District of Columbia | California | Germany |
|---|---|---|---|---|---|
| Who takes charge of the estate | Personal representative appointed by the Register of Wills or the Orphans’ Court | Administrator qualified before the circuit court clerk | Personal representative appointed by the Probate Division of the Superior Court | Administrator appointed by the superior court | The heirs jointly, as a community of heirs |
| Required survival | 30 days; a 120-hour rule takes effect on October 1, 2026 | 120 hours | 120 hours | 120 hours | Survival of the decedent (§ 1923 BGB) |
| Administrator who is a foreign national living abroad | Restricted until September 30, 2026; restriction repealed from October 1, 2026 | Permitted, subject to the nonresident rules | Excluded unless a lawful permanent resident | Excluded if resident outside the United States | No administrator required |
| Simplified procedure | Estates up to $50,000, or $100,000 where the spouse is the sole heir | Small asset affidavit up to $75,000 | Estates up to $80,000 | Affidavit up to $208,850; petition for a primary residence up to $750,000 | None; a certificate of inheritance is required for real estate |
| Death taxes below the national level | Estate tax above $5,000,000; inheritance tax of 10 percent outside the exempt circle | None | Estate tax above $4,988,400 | None | Not applicable; national inheritance tax on each heir, from 7 to 50 percent |
Figures as of September 2026. The California amounts apply to deaths on or after April 1, 2025.
Only the spouse’s share qualifies for the federal marital deduction, and only if the spouse is a United States citizen or the property passes to a qualified domestic trust. Where a statute sends part of the estate to the children, state estate tax that a will in favor of the spouse would have deferred may become payable at the first death. German inheritance tax is levied on each heir, with allowances ranging from €500,000 for a spouse to €20,000 for siblings and unrelated persons.
Part VI. Estates in more than one jurisdiction
The estate of a household domiciled in the District of Columbia with a vacation property in Virginia and an apartment in Munich is divided under three sets of rules, administered in two American proceedings and settled in Germany through a certificate of inheritance. The firm’s article on dying without a last will and testament in Washington DC, Maryland and Virginia compares the three neighboring American statutes in detail.
The estate tax treaty between the United States and Germany allocates taxing rights and provides credits, but it does not determine who inherits, and German inheritance tax remains payable by an heir resident in Germany even where the decedent lived in the United States (§ 2(1) No. 1 ErbStG). Foreign nationality does not prevent inheriting in any of the five jurisdictions; the difficulties lie in the appointment of an administrator, the documentation of heirship and the withholding rules on a sale of American real estate. The firm’s pages on non-US beneficiaries and non-US decedents address those questions.
Part VII. Practical steps
- Determine the domicile or habitual residence, and list each asset by jurisdiction and by the manner in which it passes.
- Compare the statutory result with the intended division, with particular attention to children from earlier relationships, minor children and unmarried partners.
- Establish the marital property position: community or separate property in California, and the governing matrimonial property law where German assets are involved.
- Execute a will that names a personal representative able to qualify in each jurisdiction concerned, waives bond, nominates guardians and holds the shares of minors in trust.
- Coordinate the documents for real estate in a second jurisdiction or in Germany, and review the tax result under federal, state and German law.
Part VIII. The individual jurisdictions
- Maryland: the spouse’s share since October 1, 2023, stepchildren as heirs, inheritance tax.
- Virginia: the one-third rule, the elective share, qualification before the clerk.
- District of Columbia: the descendants’ and parents’ shares, the exclusion of foreign administrators.
- California: community and separate property, statutory fees, small estate procedures.
- Germany: the orders of heirs, the marital property regime, the community of heirs, inheritance tax.
Conclusion
The statutory order of succession is a default for a family in a single jurisdiction. It rarely corresponds to the intentions of a family with children from more than one relationship, minor children, an unmarried partner, or assets in several states or in Germany, and in each of those cases it also determines who administers the estate and how much tax is payable.
How the firm helps
Ashford International Law PC advises families on estate plans that replace the statutory rules, and advises administrators and heirs on the settlement of intestate estates in the five jurisdictions, including estates with heirs or assets in Europe. Related material is available on the firm’s pages on estate settlements, estate settlements in Virginia, estate planning for non-US citizens, marital property regimes and asset and tax planning for non-US residents with US assets. Defined terms are collected in the Topics A-Z. The federal gift, estate and generation-skipping transfer taxes and the state death taxes are summarized on the page on gift and death-related taxes, and the estate tax on citizens and domiciliaries is described on the page on estate tax in the United States.
This page is intended for general educational purposes and does not constitute legal or tax advice, nor does it create an attorney-client relationship. The matters described depend on the specific facts, the countries and states concerned, and the law in effect at the relevant time. Statuses and figures are stated as of September 2026 and must be confirmed before any decision.