Intestacy

By James Parker
/
April 17, 2022

What Is Intestacy?

Intestacy is the state of dying without a will. This is a legal state of being that is used primarily in settling the affairs of the individual who has passed away, usually referred to as the decedent. Someone who died in a state of intestacy, sometimes just described as intestate, leaves no instruction for how their affairs should be handled or how their assets should be divided.

Someone who is intestate has their estate processed through a special court called the probate court. A probate court is a special purpose court with limited power that hears cases surrounding a person’s death. This can include distributing assets according to a will if the decedent had one or choosing how to divide assets if the decedent was intestate.

A probate court deciding the division of assets for an intestate decedent will appoint an administrator. This administrator will be responsible for a number of tasks regarding the death of the decedent before they are able to distribute the decedent’s assets to their heirs. Heirs are decided according to state law.

Key Takeaways

  • Intestacy is the legal state of dying without a last will and testament. 
  • Without a will or other form of estate planning, the state will be responsible for appointing an administrator to handle the division of assets in accordance with state law. 
  • Intestacy can be a very inconvenient and troubling way to leave an individual’s affairs as it can result in conflict over who should receive what assets and may cause discord and confusion after the individual’s death.
  • If you want to establish a last will and testament to prevent intestacy, an experienced Trusts & Estates attorney may be able to help plan your estate to your needs by utilizing experience and expert knowledge.

Intestacy, Trusts, and Estates

There are some assets that can pass on after a decedent’s death even if they died intestate. Some of these assets have explicitly named beneficiaries in their contract such as life insurance policies, living trusts. These assets pass to the contingency beneficiary named. Some IRAs, 401(k)s, and retirement accounts can function this way as well. 

Any jointly held assets such as real estate, bank accounts, bonds, or property will similarly skip the probate process. These assets allow the co-owner or co-owners to assume ownership of the decedent’s share of the assets.

Finally there are payable-on-death bank accounts, transfer-on-death stocks and securities, and transfer-on-death deeds or titles. These assets are deliberately created to transfer or pay out to an individual upon the decedent’s passing.

For any of the decedent’s property that is not covered by these planned contingencies, the administrator of the probate court will need to step in. The administrator is responsible for a wide variety of tasks including resolving any legal claims against the estate, paying any outstanding debts the decedent owed, and managing any financial responsibilities such as utilities that are owed for the decedent’s assets during the distribution process. All of these fees, debts, and the administrator’s own compensation will come from the decedent’s estate.

The most important task that an administrator oversees is the contacting and distribution of assets to the heirs of the decedent. Who exactly is contacted and what they receive is laid out according to each state’s property laws. States like Arizona, California, Idaho, Nevada, New Mexico, Texas, and Washington have probate laws that distribute the intestate decedent’s assets according to community property laws. This gives priority to the spouse of the decedent and continues down family lines. 

In fact, for most descendants who have no will, the line of succession for inheritance will pass from spouses to children to grandchildren to distant family members. In the event that no relatives can be located, the state will take control of the assets. At no point are unmarried partners, friends, or charities ever considered. 

For this reason it is highly recommendable that everyone have a legally recognized will and testament for dividing their assets according to their own preferences.

Bottom Line

If you want to avoid intestacy and the myriad of issues that surround having your assets distributed by the state, there is a simple solution: write a legally binding last will and testament. In order to ensure that your will will be accepted by the probate court, you will need to consult a trusts & estates attorney.

An experienced trusts & estates attorney can not only analyze your existing will to ensure that it is in accordance with all local laws, they can also improve it. A trusts & estates attorney with extensive knowledge of local, state, and federal probate laws can help you maximize the assets going to your heirs while minimizing the fees and taxes that your estate will have to cover.

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