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Intestacy is not an ailment, but it can be painful to loved ones

by Tom Alberts | Senior contributor
July 3, 2018

When someone dies without a valid last will and testament, a probate judge will follow state intestacy laws to determine how their estate is distributed. The laws don't take into consideration the specific wishes of the deceased.

Intestacy is not a disease, but it should give you heartburn thinking about it. It's described as the condition of an estate of a person who dies without having executed a valid last will and testament. In other words, if you don't have valid will when you die, you'll lose direct control of your financial legacy.

Intestacy laws, which vary from state to state, determine who is entitled to inherit property when no guidance from a will is given and no estate plan is in place.

One's heartburn should begin with the realization that once you're gone, a probate judge, unaware and legally blind of your true intentions, will decide the fate of your estate and divvy up your assets.

a probate judge slamming a gavel in probate court

Imagine someone pondering a will that proclaims: “I hereby leave to the state and a probate judge all the necessary authority to decide in a public forum who receives my property and how much they shall receive, regardless of my actual wishes. If necessary, the court can appoint anybody it sees fit, without my input, to serve as guardian of my minor children. In addition, please charge my estate 3 to 8 percent of its value for the services of the probate process.”

It's hard to fathom someone of sound mind contemplating such a declaration. But that's essentially what happens when an estate lacks a properly executed will.

In intestacy, there's no effort to investigate what the dearly departed's wishes truly were. An inquiry into proper and well-thought intentions? No way. Judicial interrogations to determine the undisputed and desired outcome? That's not likely, either.

Generally, intestacy statutes distribute estates to the surviving spouse and children and their descendants and climb up and down branches of the family tree as necessary to determine other beneficiaries. State laws on the method of property distribution vary but generally provide that recipients are the closest surviving relatives.

The order of inheritance in most states is the surviving spouse, children, parents, siblings, nieces and nephews and next of kin. If you lack survivors, the state treasury will gladly consume the fruits of your life's labor - not your favorite charity, beloved friend or treasured pet.

When a person dies without a will, he is described to have died "intestate."

There are a plenty of examples to illustrate the ills of intestacy, but consider just one mess caused in Texas when a woman's husband died without a will.

The husband was survived by two children from prior relationships. The woman had lived with her husband in a home he bought before they were married.

The lack of a will suddenly put the home in play. Would the children seek the sale of the home in order to collect their share of dad's assets? That's because in Texas, the surviving spouse is entitled to half of the couple's community property but only one-third of the deceased spouse's personal property, and the children would get dad's two-thirds in equal shares. Since dad owned the house before marrying his surviving spouse, she's only entitled to one-third of the dwelling's value.

a toy house sitting ontop of a calculator

If his dying wish was to risk leaving his wife without a home and cause a major rift among his survivors, intestacy laws are able to help make that happen. Intestate also means a lengthy wait - usually several months and sometimes years - for the potentially costly legal process of probate to conclude.

Being intestate has unintended consequences, which is why proper estate planning is always a smart move.

Avoiding probate and ensuring that your wishes are followed begins with a properly executed last will and testament. In the estate planning process, there are other options to consider, such as a creating a living will and establishing trusts. That way, the distribution of your estate is determined by you, not a judge, and uncertainty, stress and the possibility of a legal challenge is minimized.

One option to consider is membership in Legacy Assurance Plan, which educates its members on a variety of estate planning options and provides access to numerous resources to achieve planning objectives.

Legacy Assurance Plan is an estate planning services company. Its goal is to educate people on a variety estate planning issues. It also provides access to a variety of resources to help its members achieve their estate planning objectives. Whether your goal is as simple as protecting your family and loved ones from the costs, delays and hassles of probate or as complex as providing for a disabled child when you no longer can, Legacy Assurance Plan can help you find the information and resources you need to privatize your estate.

How do I create an estate plan?

There are numerous options and scenarios to consider when developing an estate plan that protects your legacy and achieves your objectives, and important decisions should be made with the advice of qualified lawyers and financial experts. Membership with Legacy Assurance Plan provides members with valuable resources and guidance to develop comprehensive estate plans that take life's contingencies into consideration and leave a positive impact for generations to come. Legacy Assurance Plan members also receive peace of mind that a team of trusted, experienced professionals will assist them in developing legal, financial and tax strategies that will meet their needs today and for years to come through periodic reviews.

This article is published by Legacy Assurance Plan and is intended for general informational purposes only. Some information may not apply to your situation. It does not, nor is it intended, to constitute legal advice. You should consult with an attorney regarding any specific questions about probate, living probate or other estate planning matters. Legacy Assurance Plan is an estate planning services company and is not a lawyer or law firm and is not engaged in the practice of law. For more information about this and other estate planning matters visit our website at

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