What Is Intestacy?
When someone dies “in intestacy,” they die without a legal last will and testament. When someone dies intestate, a state probate court must decide how their assets will be distributed. Typically, the court determines that spouses and close relatives are the first in line as beneficiaries.
If the court determines that an existing will is invalid, the estate may also be deemed as intestate. In order to ensure your assets go to the heirs you choose, it is essential to create a valid last will and testament.
What Happens if You Die Intestate?
If a valid will (or letter of testamentary) does not exist or cannot be found, the probate court begins the process by appointing an administrator to oversee the estate. This administrator, who functions similarly to the executor of a will, creates a list of the deceased person’s assets, pays off any debts, and distributes any remaining assets to the individuals the probate judge rules as legal heirs.
Any property you co-own with someone doesn’t go through the probate process if they survive you. For instance, if you and your spouse co-own your house, your spouse will become the home's sole owner.
These heirs of someone who died intestate typically include the surviving spouse, children, parents, siblings, and grandchildren of the deceased. The order in which the judge decides who gets what is called intestate succession. Typically, if you have a surviving spouse with no surviving parents, children, or grandchildren, the spouse receives your entire estate.
Although laws can vary from state to state, common law dictates that probate courts divide the estate among the surviving spouse and children. If the deceased was unmarried or widowed at the time of their death, their assets are divided among any surviving children before any other relative.
If no next of kin can be located, the assets become the property of the state. The legal term for this situation is escheatment.
Creating and following an estate planning checklist is how to ensure your assets are where you want them to go after you pass away.
Setting up a trust is one way to bypass the lengthy probate process. A pour-over will is another estate planning tool that distributes assets not part of the trust.
Some people make the mistake of thinking wills and estate plans are only for the wealthy, but estate planning is for everyone. Your estate includes your:
- home
- vehicles
- bank accounts
- pets (the law considers them as property)
- personal items (including clothes, books, furniture, and heirlooms)
When someone dies intestate, the administration of their estate can be time-consuming and expensive for their heirs. And your assets may go to something other than the people or organizations you wanted to have them.
For example, if you are living with someone but not legally married, your partner is unlikely to receive any assets. On the other hand, an estranged sibling may receive assets. For these reasons, it is important to make a valid will and keep it up to date with your wishes.
Start Your Last Will and Testament Now
Helpful Resources:
NY Court - Intestacy: When There Is No Will
ChildWelfare.gov - Intestate Inheritance Rights for Adopted Persons
Table of Contents:
- What Is Intestacy?
- What Happens if You Die Intestate?
- Estate Planning Tools to Bypass Probate
What Is Intestacy?
When someone dies “in intestacy,” they die without a legal last will and testament. When someone dies intestate, a state probate court must decide how their assets will be distributed. Typically, the court determines that spouses and close relatives are the first in line as beneficiaries.
If the court determines that an existing will is invalid, the estate may also be deemed as intestate. In order to ensure your assets go to the heirs you choose, it is essential to create a valid last will and testament.
What Happens if You Die Intestate?
If a valid will (or letter of testamentary) does not exist or cannot be found, the probate court begins the process by appointing an administrator to oversee the estate. This administrator, who functions similarly to the executor of a will, creates a list of the deceased person’s assets, pays off any debts, and distributes any remaining assets to the individuals the probate judge rules as legal heirs.
Any property you co-own with someone doesn’t go through the probate process if they survive you. For instance, if you and your spouse co-own your house, your spouse will become the home's sole owner.
These heirs of someone who died intestate typically include the surviving spouse, children, parents, siblings, and grandchildren of the deceased. The order in which the judge decides who gets what is called intestate succession. Typically, if you have a surviving spouse with no surviving parents, children, or grandchildren, the spouse receives your entire estate.
Although laws can vary from state to state, common law dictates that probate courts divide the estate among the surviving spouse and children. If the deceased was unmarried or widowed at the time of their death, their assets are divided among any surviving children before any other relative.
If no next of kin can be located, the assets become the property of the state. The legal term for this situation is escheatment.
Creating and following an estate planning checklist is how to ensure your assets are where you want them to go after you pass away.
Setting up a trust is one way to bypass the lengthy probate process. A pour-over will is another estate planning tool that distributes assets not part of the trust.
Some people make the mistake of thinking wills and estate plans are only for the wealthy, but estate planning is for everyone. Your estate includes your:
- home
- vehicles
- bank accounts
- pets (the law considers them as property)
- personal items (including clothes, books, furniture, and heirlooms)
When someone dies intestate, the administration of their estate can be time-consuming and expensive for their heirs. And your assets may go to something other than the people or organizations you wanted to have them.
For example, if you are living with someone but not legally married, your partner is unlikely to receive any assets. On the other hand, an estranged sibling may receive assets. For these reasons, it is important to make a valid will and keep it up to date with your wishes.
Start Your Last Will and Testament Now
Helpful Resources:
NY Court - Intestacy: When There Is No Will
ChildWelfare.gov - Intestate Inheritance Rights for Adopted Persons
