No Will, and a House

Without a will, a spouse may not inherit the whole house, and the state can claim back what Medicaid spent on long-term care.

If there is no will, doesn't it all go to the spouse?

Usually not. In many states the estate is divided between the surviving spouse and the children, and that surprises nearly everyone.

Dying without a will is called dying intestate, and the state then applies its own formula. Most people assume the formula is "everything to the husband or wife." In a large number of states it is not.

Depending on the state, a surviving spouse may receive one-third, one-half, or all of the estate, with the remainder going to the children. Some states split it even when the children are the couple's own. Others treat it differently when there are children from a previous relationship.

Two consequences families run into:

• The house can end up part-owned by the children, which matters enormously if the surviving spouse intends to keep living in it, or later needs to sell it to pay for care.
• Stepchildren inherit nothing under intestacy, however close the relationship, unless they were legally adopted. Only a will or a trust can include them.

If there is no will, that is ordinary and it is not a failure — most people do not have one. What matters is knowing that the default is a state formula rather than the arrangement the family assumed.

Does the house have to go through probate?

It depends entirely on how the title is held, and that single detail can change everything that follows.

Probate is the court process that transfers property owned by someone who has died. Whether the house goes through it depends on the deed:

• Owned in her name alone — it goes through probate.
• Joint tenancy with right of survivorship — it typically passes directly to the surviving owner, outside probate.
• A transfer-on-death or beneficiary deed (available in many but not all states) — passes directly to the named person outside probate.
• Held in a living trust — passes under the trust, outside probate.
• Tenancy by the entirety, between spouses in states that allow it — passes to the surviving spouse.

Get the actual deed and read it. Not the mortgage statement, not the tax bill — the recorded deed. It is a public record and the county recorder's office can produce a copy. Families are frequently wrong about how their own house is titled.

Will Medicaid take the house?

If Medicaid paid for her long-term care after she turned 55, the state is required by federal law to try to recover that money from her estate. There are real limits, and they matter.

It usually arrives in a letter, a few weeks after the funeral.

The rule comes from federal law. For people aged 55 or older, states are required to seek recovery from the estate for nursing facility services, home and community-based services, and related hospital and prescription drug costs.

The home is treated as exempt while the person is alive and receiving Medicaid. That exemption ends at death, which is where families are caught — they were told the house was safe, and it was, right up until it was not.

Now the limits, and they are substantial:

• Recovery is prohibited while there is a surviving spouse. It cannot happen during that spouse's lifetime. Some states may pursue the spouse's own estate later; many defer or waive it entirely.
• Recovery is prohibited if the deceased is survived by a child under 21, or a blind or disabled child of any age.
• It is capped at what Medicaid actually spent on her behalf from age 55 onward.
• Other creditors come first. Recovery cannot exceed what is left after their claims are satisfied.
• Every state must have an undue hardship waiver process. This is not optional.

What is an undue hardship waiver?

A formal request to reduce or forgive the claim, and the window to file one is short.

States are required to have a process, but they define hardship differently. It commonly covers situations where the property is the sole income-producing asset of the heirs — a farm or a small business is the classic example — or where the heirs themselves have very low income and would be made destitute.

Two practical points. The deadlines are tight — in some states the request must reach the agency within 60 days of the notice, with a decision following within weeks. And the notice arrives in the middle of a bereavement, addressed to whoever is handling the estate, in language that reads like a bill rather than an invitation to object.

If a recovery notice arrives, take it to an elder law attorney the same week. Not next month.

Why does it matter whether we are in a "probate-only" state?

Because some states can only reach what passes through probate — and in those states, how the deed reads decides whether the house is touched at all.

Federal law lets states define "estate" narrowly or broadly. Some limit recovery to the probate estate only. Others use an expanded definition that reaches assets passing outside probate — joint tenancy, life estates, living trusts, transfer-on-death deeds.

In a probate-only state, a house that passes by survivorship or a beneficiary deed may never be reached. In an expanded-recovery state, the same deed may make no difference at all.

You cannot work this out on your own. Ask an elder law attorney in your state which definition applies, and ask it before anyone changes a deed, because a transfer made at the wrong moment can create a Medicaid penalty that costs more than the house.

Can I keep living in the house?

Possibly, and there are specific exemptions worth asking about by name.

Several protections exist that families never hear of:

• The caregiver child exemption. In broad terms, a home may be transferrable to an adult child who lived in it for at least two years and provided care that delayed the parent's move into a facility. The requirements are exacting and heavily documented — but if you have been living there and doing the care, ask about it specifically.
• The sibling exemption, for a sibling with an equity interest who lived in the home for at least a year before the Medicaid application.
• Deferral while a survivor lives there. Some states will postpone recovery rather than force a sale while a qualifying person remains in the home.

None of these is a form you fill out casually. All of them are reasons to see an attorney rather than assume the answer.

She has died and there is no will. What now?

In this order, and slowly. Almost nothing here has to happen this week.

• Do not transfer, sell or empty anything until you know what the estate contains and who has authority. Moving assets before that is how personal liability starts.
• Find the deed, the mortgage statement, and any life insurance and retirement accounts. Beneficiary designations on those pass outside a will and outside probate.
• Order several certified death certificates. Ten is not too many; every institution wants its own.
• Find out who can be appointed administrator of the estate under state law, and how.
• Keep every bill and every receipt from the moment of death. If a Medicaid claim arrives, what the estate paid to other creditors matters.
• Talk to a probate or elder law attorney before responding to any recovery notice. Many will do a first consultation cheaply, and the money is well spent here.
• Watch the mail for a recovery notice, and treat it as time-sensitive when it comes.

And if she is still living?

Then everything above is a list of things that can still be decided rather than discovered.

While there is capacity, a will and the beneficiary designations can be put in order, and the couple's actual intentions can replace the state's formula.

Where there is no longer capacity, an agent under a durable power of attorney may still be able to act, depending on how the document is written — some grant authority over property and estate planning, many do not. That is a question for the attorney who reads the document, not one to guess at.

And the honest advice about the house specifically: do not transfer it to anybody on the strength of an article, a message board, or a relative's confident opinion. The look-back rules, the state's recovery definition, and the tax consequences of gifting a house interact in ways that regularly cost families more than the recovery would have. Ask first.