Intestate: Dying Without a Will

What does intestate mean?

Intestate is a term that describes when a person dies without a Last Will and Testament. It may describe either a deceased person or their estate.
If you pass away without having a valid Will in place, courts consider your entire estate intestate. If you die with a valid Will but don’t account for your entire estate, only the absent assets and finances are intestate.
However, even if you create a Will, a court may find problems with it and determine that it’s invalid. In this case, courts may still consider your estate intestate. For this reason, update your Will regularly and clearly communicate your wishes to your executor.
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What happens if you die without a Will?

If you pass away without creating a Will, or if you don’t account for all of your property in your Will, your undistributed property must go to probate court. The court then distributes your property according to your state’s intestate succession laws.

What is intestate succession?

Intestate succession refers to a predetermined order of inheritance in cases of intestacy. In these situations, a court distributes your individually owned property to your closest surviving family members according to your state’s intestate succession laws. Each state has varying laws that determine how to distribute your estate.
The purpose of intestate succession laws is to have a consistent way for courts to distribute an intestate estate. Typically, an intestate succession order begins with your surviving spouse (if you have one) and then goes to your next family member in line.

Who inherits when there is no Will?

Depending on your state, intestacy successions laws may dictate that your spouse is entitled to all or a portion of your individually owned property after you die. In some states, your children, including any adopted children, are entitled to a portion of your personal estate. If one of your children passes away before you, their children (your grandchildren) could inherit their parent’s portion of your estate.
Typically, your parents and siblings are next in the order of inheritance, followed by your aunts, uncles, nieces, nephews, and cousins. In some states, your parents may be entitled to share your estate with your surviving spouse if you have no living children, grandchildren, or great-grandchildren.
For example, a state’s intestate succession laws may determine the order of inheritance as:
  • Your surviving spouse
  • Your children, grandchildren, or great-grandchildren
  • Your parents
  • Your parents’ descendants (your siblings, nieces, and nephews)
  • Your grandparents’ descendants (your aunts and uncles)
Check your state’s succession laws to determine the exact order of inheritance where you live.
No matter what state you live in, your friends can’t inherit your intestate estate, regardless of how close you may have been with them. If it’s important to leave a portion of your estate to a non-family member, it is extremely important to outline your wishes in a Last Will and Testament.

What property can courts distribute with intestate succession?

If you die intestate, a court can’t distribute all types of property according to intestate succession rules. Intestacy does not affect the following types of property:
  • Property held in joint tenancy with a right of survivorship
  • Property held in a Living Trust
  • Life insurance proceeds
  • Payable-on-death bank accounts
If you don’t have a valid Will at the time of your passing, a court can only distribute the individually owned property (also known as separate property) that you should have otherwise accounted for in your Will.
A court can only distribute separate property because, if you’re married (or, in some states, in a common law relationship), your spouse usually automatically inherits full ownership of all jointly owned property. Jointly owned property (also known as shared property) usually includes property that you and your spouse acquired during your marriage and own together.

State intestacy laws

If you pass away without creating a Will or don’t account for all your property in your Will, a court will distribute your intestate property according to the intestate succession laws of your state. Each state has unique rules. For example, Florida and New York’s rules differ from one another.
Florida Intestacy Laws
In Florida, if you’re married and pass away without a will, your spouse’s inheritance amount depends on whether or not you have children. Generally, if you have no children, your surviving spouse inherits all of your intestate property.
If you and your spouse don’t have children together, and you don’t have children from another relationship, then your spouse gets everything. If you and your spouse have children together, and you don’t have children from another relationship, then your spouse gets half and your children get half. If you have a child who predeceases you and they have children (your grandchildren), they are entitled to their parent’s portion of your estate.
New York Intestacy Laws
Similarly to Florida, in New York, if you’re married and pass away without a will, your spouse’s inheritance amount depends on whether or not you have children. Generally, if you have no children, your surviving spouse inherits all of your intestate property.
New York’s intestate succession laws differ from Florida in situations that involve spouses and children. If you have children, your spouse inherits the first $50,000 of your intestate property and half of the remaining amount. The other half of the remaining amount transfers to your children, or if any of your children have passed away, to their children (your grandchildren).
Check your state’s succession laws to determine the exact rules of intestate inheritance where you live.
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