Testacy laws are the laws that determine how the property of a person with a valid will in place is distributed upon their death. Someone having a valid will in place at the time of their death is said to have died “testate”. In contrast, a person who passes away without having a valid will in place is said to have died “intestate.”
Testacy laws are different for each state and determine several different legal issues associated with wills. They can cover issues like:
- Whether or not a will is actually valid;
- Clarifying the directions contained in the will, including how and to whom the property will be distributed; and
- Disputes that arise (e.g. Someone feels they were unintentionally left out of a will, or that the distribution of property is unfair considering specific circumstances, etc.)
Testacy laws can vary greatly from one state to another, but an estate lawyer will know which set of rules should be applied.
What is a Testacy Proceeding?
Sometimes it’s actually difficult to tell whether a person died with a valid will or not. How is this possible? There may be questions raised about the authenticity of a document that is claimed to be the person’s will. Or, there may be more than one version of the person’s will floating around, especially if they created different versions of their will at different points in their life.
In such cases, a “testacy proceeding” may need to take place before the estate is distributed. In a testacy proceeding, the court may address several petitions filed by persons interested in the outcome, such as:
- A petition from the deceased person’s representative, asking that the court probate (process) a will document;
- A petition to prevent informal probate processing of a will (e.g. if some family members wish to handle property distribution outside of state court proceedings); and
- A petition for an order stating that the deceased person did not actually have a valid will at the time of death.
If there was no valid will in existence, then the person would have died intestate and the person’s estate will be distributed according to the intestacy laws of that state. In terms of claiming property, spouses and children are almost always put first and get priority before distant relatives or anyone not related by blood or marriage in terms of claiming the deceased person’s property, even if that’s not necessarily what the deceased person would have wanted. Like testacy laws, intestacy laws vary greatly from state-to-state, and an estate lawyer can help determine what exactly someone is entitled to when someone is deemed to have died intestate.
Sorting out exactly how property should be distributed according to intestacy laws can be a very long, drawn-out process through the courts. This is why it is almost universally recommended that a person have a valid will in place.
A person who unexpectedly dies or becomes incapacitated without a valid will in place loses their opportunity to draft a will, and thus the opportunity to direct how they would like their property distributed after death. This can result in a number of unintended outcomes, such as the deceased person’s property being distributed to a spouse, child, or other relative that they chose to cut off all contact with.
Dying intestate could also result in property being distributed to a distant relative that the deceased person did not even know. In rare situations where a person dies intestate and no next-of-kin can be found, the person’s entire estate will actually be taken by the state as a last resort. Creating a will can ensure that situations like these are avoided and, even if a person doesn’t have any close family, they can direct that their property be distributed to a friend or a favorite charity.
Drafting a will takes time and money though, and most people are not familiar with the exact state-specific requirements for executing a valid will (e.g.Many states require a signature from two people who witness you sign your will, and are also not named in the will, in order for the will to be considered valid.) For this reason, drafting a will may require the expertise of a lawyer to ensure compliance with state law, especially for larger estates that have a higher net worth.
Do I Need a Lawyer If I Have a Question About Testacy Laws?
Testacy laws can have dramatic effects on the way property is distributed after a person’s death. If you need help with a will, or have any questions about the testacy laws in your area, then you should speak with an estate lawyer immediately. An estate lawyer can advise and guide you on how to write a valid will, and can also provide representation in the event of a will dispute.