In legal terms, dying without a valid will is referred to as intestacy. Each state has its own laws regarding intestacy, and the distribution of the decedent’s property if there is no valid will. Such laws distinguish the differences between total intestacy, and partial intestacy. Total intestacy refers to dying with no valid will at all, whereas partial intestacy involves a will that does not dispose of all of the property belonging to the decedent.

Under intestacy laws, it is usually the decedent’s spouse who will have first rights to property distribution and inheritance. After that, most states follow the lines of the decedent’s descendants and their children. If there are no family members at all, the decedent’s property will likely escheat to the state. This means that the property will generally go to the state in which they died.

Thus, an intestate estate, refers to an estate or portions of an estate that are not covered by a valid will. The lack of a valid will to provide instructions on how to distribute the decedent’s estate generally leaves the estate to be distributed according to state probate laws. In most cases, a valid will should prevent an intestate estate from occurring.

However, there are some instances in which some portions of the estate are not covered by the will. As mentioned above, this is known as partial intestacy. An example of this would be if the estate holder obtained some property right before their passing, and that property does not fit into any of the provisions included in their will. This could lead to some confusion as to who should receive that specific property item.

What Does Intestate Succession Mean?

Succession laws determine how property is to be distributed when an estate owner dies. Intestate succession is the transfer of rights and obligations, from the decedent to their legal heirs. Generally, property distribution would proceed according to the decedent’s intentions, as stated in their will. However, in cases of intestacy, succession laws will typically create a preference hierarchy among potential heirs. An intestate estate will need to be distributed through probate according to intestate succession.

Close relatives, such as the intestate decedent’s spouse and children, will generally take priority and receive distribution from the estate before any others. Once those closer relatives have received their share of the estate, more distant relatives will receive their share should anything remain.

The intestate decedent’s state laws will determine the succession. Some states give the surviving spouse a specific amount of the marital property, and divide the rest amongst their children. Other states dictate that the spouse is to receive everything and the children must rely on their living parent to leave them anything that remains of the decedent’s estate.

As previously mentioned, the order of intestate succession will vary from state to state. However, the order of succession typically follows:

  • Surviving spouse;
  • Children;
  • Parents of the deceased;
  • Siblings;
  • Nieces and nephews;
  • Grandparents;
  • Aunts and uncles; and
  • Cousins

If succession laws are violated, whether intentionally or accidentally, it could result in criminal charges against the offender. Some examples of punishments include fines or time spent in jail. A few common ways that succession laws may be violated include:

  • Attempting to claim property in a manner that deviates from the state’s succession laws;
  • Claiming property that rightfully and lawfully belongs to another relative;
  • Claiming more assets or funds than they are entitled to; or
  • Failing to return property that was erroneously distributed.

How Can an Intestate Estate Be Avoided?

The best way to avoid an intestate estate is to draft a valid and legally enforceable will, or estate plan, while you are still capable of doing so. An estate plan dictates how your property is to be managed and distributed once you die. This could include instructions regarding your personal items, bank accounts, real estate, stocks and securities, and other assets. A clear estate plan can minimize your loved ones’ tax burdens, as well as the need for probate court hearings.

Another option for avoiding an intestate estate is to appoint an estate administrator, or utilize a power of attorney. An estate administrator or executor is a trusted individual appointed by the owner of the estate to distribute their estate once they die. The estate executor assumes general responsibility over the decedent’s finances, which could include:

  • Dealing with creditors;
  • Defending against lawsuits;
  • Managing the estate’s assets as needed;
  • Identifying the will’s beneficiaries; and/or
  • Ensuring that the beneficiaries receive their proper inheritance.

Do I Need an Attorney for Intestate Estates?

As intestacy often results from the lack of a will, consulting with a skilled and knowledgeable estate attorney in order to draft a legally enforceable will is highly advisable.

An experienced estate attorney can help you understand your state’s laws, designate an administrator, and ensure that your legal documents are in order. Additionally, the attorney can help ensure that your legal documents cover your entire estate.