In legal terminology, dying without a valid will is referred to as intestacy. Each state has its own laws regarding intestacy, and the distribution of a person’s property that should be made if a person dies intestate. Such laws distinguish between total intestacy, and partial intestacy. “Total intestacy” refers to dying with no valid will at all, whereas “partial intestacy” involves a valid will that does not dispose of all of the property belonging to the decedent, i.e. the person who has passed away, in legal terminology.

All states have laws of intestacy. They usually provide that the decedent’s spouse has first rights to property distribution and inheritance. After that, most states follow the lines of the decedent’s descendants, i.e. their children and grandchildren. If there are no family members at all, the decedent’s property will likely go to the state in which the decedent resided.

Thus, the term “intestate estate” refers to the property of a person who has died without a will. The term can also refer to portions of an estate, i.e. the assets or property of a person who has died that are not covered by a valid will. The lack of a valid will that gives instructions on how to distribute the decedent’s estate means that the estate will be distributed according to state laws of intestacy.

There may be some evidence, other than a will, that shows what the decedent may have wanted in terms of distribution of their assets after their death. For example, a close friend may have a letter from the deceased in which they state that the friend will be remembered in their will. There are, however, no exceptions to distribution according to the laws of intestacy, if no valid will exists. No exceptions are made, even if, among the relatives of a decedent, there is a case of special need or special circumstances.

In some cases, only some items in a decedent’s estate are not covered by the will. This would be a case of partial intestacy. An example of this would be if the decedent obtained some property right before their passing, and that property does not fit into any of the provisions included in their will. Or, the will might be old and the decedent may have acquired property after making it. The decedent may have intended to update their will but never got around to it. This could lead to some confusion as to who should receive that specific item of property.

What Does Intestate Succession Mean?

State inheritance succession laws determine how property is to be distributed when an estate owner dies without a valid will. Generally, property distribution would proceed according to the decedent’s intentions as expressed in their will. However, in cases of intestacy, succession laws provide a preference hierarchy among potential heirs for distribution. Each state has its own laws of intestate succession, but there are similarities.

Close relatives, such as the decedent’s spouse and children, will generally take priority and receive distribution from the estate before any others. Once they have received their shares of the estate, more distant relatives may receive a share should anything remain. Remember that any debts and tax obligations of the decedent must be paid before the estate can be distributed to the heirs.

  • A surviving spouse is entitled to the entire estate, if the decedent is also survived by children who are children of the marriage of the decedent and the surviving spouse. Adopted children of a decedent and their surviving spouse inherit on the same terms as biological children;
  • The surviving spouse is also entitled to the entire estate if the decedent is not survived by direct descendants, i.e. children, grandchildren, etc., or parents;
  • If parents survive the decedent but no descendants, the surviving spouse inherits the first $200,000 of the estate plus three-fourths of any amount that exceeds that amount. The surviving parents would inherit the rest;
  • If the decedent is survived by descendants who are also the descendants of the surviving spouse, and also by descendants who are descendants of an ex-spouse, the surviving spouse takes the first $150,000 of the estate plus one-half of any amount that exceeds $150,000. The surviving descendants would inherit the rest;
  • If the decedent is not survived by any descendants who are also descendants of the surviving spouse but is survived by descendants who are descendants of an ex-spouse, the surviving spouse takes the first $100,000 of the estate plus one-half of anything exceeding that amount.
  • The part not taken by the surviving spouse would be distributed among the descendants of an ex-spouse.

If descendants of the decedent survive, but no spouse, the descendants take the entire estate by “right of representation.” Per the right of representation, a grandchild stands in for their deceased parent, who is the child of the decedent, and gets the deceased parent’s share. If there are grandchildren, each would inherit an equal share. If there is more than one child, they split their deceased parent’s share among themselves in equal shares.

If a decedent is not survived by a spouse or descendants, the entire estate passes to the decedent’s parents equally or, if only one survives, to the surviving parent.

If a decedent is not survived by a spouse, descendants, or parents, the entire estate passes to the decedent’s parent’s descendants, who would be the siblings of the decedent. If the siblings are all deceased, then the descendants of the siblings would inherit. If there are no siblings or descendants of siblings, the estate goes to the decedent’s grandparents or their descendants, who would be the decedent’s aunts, uncles or cousins.

It is important to keep in mind that the specific laws of intestate succession in a particular state may differ in some respects from the rules above. It is important to consult an attorney who specializes in wills, trusts and estates about the law in the state in which a person resides.

When a case for the estate of a person who dies intestate is opened in probate court, the court appoints an administrator. One of the administrator’s duties is to exercise due diligence in their search for the heirs of the decedent. The administrator must search for the heirs who are entitled to inherit under the law of intestate succession.

If the administrator distributes the estate to any person who is not actually entitled to inherit, the person is said to have been unjustly enriched. If the inheritance is challenged in court, a court can find that the person who inherited property wrongfully has been unjustly enriched and holds the property they received in constructive trust for the rightful heirs. An administrator who can be shown to be dishonest or willfully negligent may also be subject to civil or criminal penalties.

How Can an Intestate Estate Be Avoided?

The best way for a person to to avoid an intestate succession is to draft a legally enforceable will while the person is still capable of doing so. An estate plan should include a will that dictates how a person’s property is to be managed and distributed once the person passes away.

This could include instructions regarding personal items, bank and retirement accounts, real estate, stocks and securities, and other assets. A clear estate plan can also minimize taxes that have to be paid out of the estate. Many assets can be distributed outside of probate court by designating beneficiaries, e.g. bank accounts and retirement accounts.

Another step that many experts recommend is to appoint an estate administrator in a will. An estate administrator or executor is a trusted individual appointed by the owner of the estate to manage their estate in probate and then distribute it as provided in the will. The administrator or executor of an estate is responsible for the the following in connection with the probating of any kind of estate:

  • Dealing with creditors;
  • Defending lawsuits;
  • Managing the estate’s assets as needed;
  • Determining whether taxes are owed and paying them;
  • Identifying the will’s beneficiaries; and/or
  • Ensuring that the beneficiaries receive their proper inheritance.

Do I Need an Attorney for Intestate Estates?

Intestacy results from the lack of a will. It can be avoided through the simple step of consulting a skilled and knowledgeable wills, trusts and estates attorney in order to draft a legally enforceable will. If you do not direct how your assets are to be distributed after your death, the law of the state in which you live does it for you. Most of us would not want this outcome.

An experienced estate planning attorney can help you understand the law of the state in which you live and draft a will that is valid under those laws. They can help you designate an administrator. Additionally, the attorney can help ensure that your will covers your entire estate and minimize the taxes your estate might owe. The time to make an estate plan is before it is needed, so you should do it today.