A valid will contains instructions on how a person’s estate is to be distributed amongst the named beneficiaries upon the estate owner’s death. When a person dies without leaving a will to dictate the disbursement of their estate, they will be deemed to have died “intestate” or without a will.

Without the instructions contained in a will, a person’s estate will typically be distributed according to state probate laws. Each state determines its laws regarding probate and intestacy. Contrary to popular belief, if you die without a will, the state does not inherit your property.

In legal terms, intestate succession can be defined as taking the rights of another in the capacity of their successor. Succession typically refers to the transfer of rights and obligations of the decedent to their legal heirs. Intestate succession laws generally create a preference hierarchy among potential heirs for the order of priority for the distribution of property.

Therefore, close relatives, such as the decedent’s spouse and children, would likely receive distributions from the estate before any others. Again, the exact laws of succession will be determined by the state where the decedent was living when they passed away.

What is a Will?

A will is a legal document stating your last wishes after you die. You choose heirs for your property, nominate guardians for minor children, resolve debts, and more with a will. When making a will, you’ll also choose an executor.

The executors’ responsibility will be to submit your will to a probate court for authentication and then carry out your last wishes. If you die without a will, all of these decisions will be made for you by a court.

What is Probate?

Regardless of whether you have a will, your estate may go to probate court. Probate is the process of overseeing the distribution of your assets after your death. If you have a will, this process usually begins with the authentication of your will.

However, if you die without a will, the process often starts with the state naming a personal administrator for you. Usually, your surviving spouse or adult child will be named an administrator. Until the court appoints a representative, your assets are frozen.

What Laws Apply to Will Issues?

The Uniform Probate Code (UPC) is a set of model laws that specifically address wills, trusts, estates, and intestacy issues. The UPC is intended to streamline the probate process for every state. It covers the determination of a will, functions of an estate executor, and the process of administering an estate. As of September 2019, eighteen states have adopted the UPC, at least in part.

Who Inherits My Property Under Intestate Succession?

As previously mentioned, intestate succession laws determine the order in which a decedent’s property is to be distributed upon their death. Further, each state has a different set of laws regarding intestate succession.
However, in general, the following individuals listed in order of preference are likely to inherit by intestate succession:

  • Spouse: A surviving spouse will receive a portion of the decedent’s estate. This portion would typically range from one-third to one-half of the estate in the past. However, under the UPC, a surviving spouse will receive the entirety of the estate in most situations. The amount that the surviving spouse receives is also dependent upon whether the decedent has any surviving children;
  • Children: If all of the decedent’s children have outlived the decedent, each child will typically receive an equal portion of the decedent’s estate. If one or more of the decedent’s children have predeceased the decedent, their descendants, if any, will inherit their portion of the estate;
  • Ancestors and Extended Family: Parents of the decedent, siblings, grandparents, nieces and nephews, cousins, etc. may only inherit under intestate succession if the decedent left no surviving children, grandchildren, or spouse (according to the UPC);
  • Stepchildren: In a minority of states, stepchildren may also be considered under intestate succession. It is worth noting that not many states have adopted this relatively new institution. However, if the decedent adopted their stepchild, the child will inherit from them just as a biological child would; and
  • The State: If a decedent dies with no heirs or next of kin, the property escheats to the state. Escheat refers to the reversion or forfeiture of property to the government upon the occurrence of some chance event, or default.

Suppose you and your spouse have a minor child and die without leaving a will to designate a legal guardian. In that case, the court will appoint a legal guardian to take responsibility for custody and care of the minor child. This person is generally selected from the child’s nearest living relatives.

Additionally, the court will appoint someone to manage the property and assets left behind until the child is of age and can manage the assets independently. The legal guardian may also be referred to as a guardian of the property, conservator, custodian, or curator.

Am I Legally Required to Have a Will?

No, you are not legally required to have a valid will in place before you die. However, if you do not have a valid will, your family and loved ones may not receive the assets and property that you intended to leave in the event of your death.

Having a will allows you to determine the distribution of your property over the intestacy laws of your state. Additionally, a will allows you to care for any minor children you may leave behind and prevent conflicts between your survivors.

Dying without a will may impact your family or spouse’s financial difficulties, especially if your spouse counted on receiving the majority of your estate to pay for your funeral expenses and the like. According to intestate succession, any property would likely be split between your spouse and children. Additionally, tax considerations are different when dying without a will, as a valid will may minimize the tax liability on your surviving family.

Writing or creating a will is a relatively simple process that will save lots of trouble later. You simply need to gather all information regarding your assets and property that you intend to leave to your family at the time of your death and then put those wishes into writing. However, most states have rules that govern when a will is considered valid.

Some examples of these rules include:

  • The will’s author must be 18 or older, married, or be a part of the armed forces;
  • The will must be written in sound judgment, and the author must have the mental capacity to know that they are creating a will;
  • The document must clearly state that it is the author’s will;
  • The will must be formally witnessed and signed; and
  • The will must be free from undue influence and duress.

Should I Hire an Attorney for Help with Will Issues?

As can be seen, dying intestate may affect your wishes for how your property should be distributed. Additionally, creating a valid will that properly aligns with your wishes may sometimes be a difficult task to do alone.

A skilled and knowledgeable estate attorney can make drafting a legal and valid will much easier. They will also be aware of your state’s specific intestacy and succession laws and can assist you in creating a property distribution plan. Also, if you are involved in a dispute over estate matters, an experienced estate attorney can represent your interests in court.