Testacy is a legal term which refers to the condition of having valid will in place at the time of death.  If a person dies with a valid will in place, they are said to have died “testate”.  This is the opposite of “intestacy”, which means the person has passed away without having a valid will. 

Thus, testacy laws determine many different legal issues associated with wills.  Testacy laws can cover issues like:

  • Whether or not a person died with a will in place
  • What the will actually contained
  • Laws involving the inheritance and distribution of property
  • Issues with personal gifts or conditional gifts in a will
  • Will disputes

Every state has very different testacy and intestacy laws.  For example, the distribution of property if the person died intestate is handled very differently from state to state. 

What is a Testacy Proceeding?

Sometimes it’s actually difficult to tell whether a person died without a will or not.  How is this possible?  There may be several documents in existence that look like the person’s will, but may or may not be.  Or, there may be more than one version of the person’s will floating around, especially if they created more than one at different points in their life.

In such cases, a “testacy proceeding” may need to take place after the person’s death, and before their estate is distributed.  In a testacy proceeding, the court may address several petitions, 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 (for example, if some family members wish to handle property distribution outside of state court proceedings)
  • A petition for an order stating that the deceased person did not have a will at the time of death, i.e., that they died intestate

If there is no valid will in existence, then the person is deemed to be deceased without a will, i.e., intestate.  In that case, the person’s estate will be distributed according to the intestate succession laws of that state (for example, spouses and children almost always get priority before distant relatives in terms of claiming the deceased persons’ property). 

Thus, it is generally recommended that a person have a valid will in place, in order to avoid any confusion in the event that they become deceased or incapacitated.  Drafting a will takes time, and may require the expertise of a lawyer, especially for larger estates that have a higher net worth.

Do I Need a Lawyer for Assistance With Testacy Laws?

Testacy laws are very different from state to state, and they 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, you should speak with an estate lawyer immediately.  Your lawyer can advise and guide you on how to write a will, and can also provide representation in the event of a will dispute.