INTESTATE
The Consequences of Not Having a Valid Will
When a person dies "intestate," their assets and property are distributed according to state intestacy laws rather than according to their personal wishes
Intestacy refers to the legal condition of dying without a valid will in place. When a person dies "intestate," their assets and property are distributed according to state intestacy laws rather than according to their personal wishes. This situation can create significant complications for families and loved ones during an already difficult time.
Understanding Intestacy Laws
What Does Intestate Mean Legally?
When someone passes away intestate, it means they've died without leaving a legally valid will. As a result, they have no legal document directing how their assets should be distributed. Instead, the intestate succession laws of their state determine who receives their property and in what proportions.
Intestacy laws are designed to create a standardized distribution process, but these laws rarely account for the complex relationships and unique circumstances of individual families. The intestate process typically involves probate court proceedings to appoint an administrator who will oversee the distribution of assets according to the state's intestacy statutes.
How Intestacy Laws Vary by State
Intestacy laws differ significantly from state to state, creating a patchwork of regulations across the United States. While most states prioritize spouses and children, the specific allocations vary considerably.
For Example:
- In some states, a surviving spouse might receive the entire estate if there are no children or if all children are from that marriage.
- In other states, the spouse might receive only a portion of the estate, with the remainder divided among children or other relatives.
- Treatment of stepchildren, half-siblings, and other family connections varies widely across state lines.
These variations can create confusion and sometimes lead to outcomes that the deceased would not have chosen. Additionally, if you own property in multiple states, different intestacy laws might apply to different assets.
The Intestate Estate Process
When someone dies intestate, their estate typically goes through a court-supervised administration process:
- Administrator Appointment: The court appoints an administrator to handle the estate. Priority is usually given to spouses, adult children, or other close relatives.
- Asset Inventory: The administrator must identify and catalog all estate assets and determine their value.
- Debt Settlement: Outstanding debts, funeral expenses, and administration costs must be paid from estate assets.
- Heir Determination: The court identifies legal heirs according to state intestacy laws.
- Asset Distribution: Remaining assets are distributed to heirs according to the state's intestate succession formula.
The entire intestate administration process often takes longer and costs more than estates with valid wills. Court involvement is typically more extensive, and administrators may face additional requirements compared to executors named in wills.
Who Inherits Under Intestacy Laws
Inheritance Rights of Spouses
In most states, surviving spouses receive a significant portion of an intestate estate. However, the exact share depends on several factors. Whether the deceased had children and if those children are also the children of the surviving spouse is an important consideration. Whether the deceased had living parents also affects the distribution. In community property states, the classification of property as separate or community property impacts how assets are divided. Spouses typically receive at least one-third to one-half of the intestate estate, but this varies by state.
Children's Rights in Intestate Succession
Biological children of the deceased typically have strong inheritance rights under intestacy laws. However, various situations can complicate matters. Adopted children are usually treated the same as biological children. Stepchildren typically do not inherit unless legally adopted. Children born outside of marriage may need to establish paternity to inherit. Posthumous children (born after the parent's death) generally have inheritance rights if born within a certain timeframe. When children inherit through intestacy, they usually receive equal shares of the portion of the estate designated for children.
Extended Family Inheritance
If the deceased had no surviving spouse or children, intestacy laws establish a hierarchy of other relatives who may inherit. This typically begins with parents, then moves to siblings (or their descendants), grandparents, aunts and uncles (or their descendants), and finally to more distant relatives. If no legally recognized relatives can be found, the estate typically "escheats" to the state, meaning the state takes ownership of the assets.
Common Misconceptions About Intestacy
"Common Law" Partners Have Inheritance Rights
In most states, unmarried partners have no inheritance rights under intestacy laws, regardless of the relationship's length or commitment level. Without a will, unmarried partners typically receive nothing from their deceased partner's estate.
The Government Takes Everything
Many people mistakenly believe that if they die without a will, the government automatically claims their assets. In reality, the state only takes possession when no qualifying relatives can be found - a relatively rare occurrence.
All Family Members Get Equal Shares
Intestacy laws don't distribute assets equally among all family members. Instead, they follow a predetermined hierarchy that may result in some close family members receiving everything while others receive nothing.
Verbal Wishes Will Be Honored
Telling family members how you want your property distributed has no legal effect if you die intestate. Only properly documented wills and estate planning tools can override intestacy laws.
Avoiding Intestacy Through Estate Planning
Creating a Valid Will
The most direct way to avoid intestacy is by creating a legally valid will. A will allows you to name specific beneficiaries for your property, designate guardians for minor children, appoint an executor to manage your estate, and include specific bequests for heirlooms or items with sentimental value. For a will to be valid, it must typically be in writing, signed by the testator (the person making the will), and witnessed according to state requirements.
Beyond Wills: Comprehensive Estate Planning
While a will is essential, comprehensive estate planning offers additional advantages:
- Living trusts can help assets avoid the court process entirely and provide privacy.
- Beneficiary designations on retirement accounts, life insurance, and other financial products override intestacy laws.
- Joint ownership with right of survivorship allows property to pass directly to the co-owner.
- Powers of attorney and advance directives address health care and financial decisions if you become incapacitated.
Frequently Asked Questions About Intestacy
Q: What happens to my children if I die intestate?
If you die intestate with minor children, the court will appoint a guardian for them. Without a will naming your preferred guardian, the court makes this decision based on what it determines to be in the children's best interest. Additionally, any inheritance for minor children will typically be managed by a court-appointed guardian of the property until the children reach adulthood.
Q: Can intestacy laws be challenged?
While the intestacy laws themselves cannot be challenged, there are limited circumstances where the application of these laws might be contested. For example, someone might challenge whether a particular person qualifies as an heir, or dispute whether certain property belongs to the estate.
Q: Does intestacy affect all assets?
Intestacy laws only affect assets that would otherwise pass through a will. Many valuable assets fall outside this category, including assets with named beneficiaries (retirement accounts, life insurance), jointly owned property with right of survivorship, assets in trusts, and payable-on-death accounts.
Q: How long does the probate process take?
The administration of an intestate estate typically takes longer than estates with valid wills. Simple estates might be settled in 6-12 months, but complex situations can take years. Factors affecting the timeline include estate size and complexity, court backlogs, and disputes among potential heirs.
