Navigating Intestate Estates
Avoiding the Pitfalls of Dying Without a Last Will
Last Updated: September 16, 2024
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Key Takeaways:
- The term intestate or dying intestate, means passing away without a valid Last Will and Testament.
- Without a Will, state intestate succession laws determine the distribution of your personal property and assets.
- Not having a valid Will can emotionally and financially affect your minor children, family, and loved ones with lengthy court and legal processes.
Table of Contents
- What does intestate mean?
- What happens if I die intestate?
- 1. Appointing an administrator
- 2. Identifying assets and heirs
- 3. Distributing assets and paying debts
- Intestate laws by state
- How does intestate succession work?
- How does spouse entitlement vary by state?
- Who cannot inherit from an intestate estate?
- Property, assets, and intestate succession
- What happens to minor children in intestate estates?
- How long does it take to settle an intestate estate?
- Should I create a Last Will to avoid intestacy?
Dying without a Last Will and Testament can leave your loved ones stuck with lengthy legal proceedings and may even leave some without an inheritance.
It’s essential for all adults to have a valid Will and estate plan so that they have the final say on what happens to their property and assets. Those with minor children should also place great importance on an estate plan.
In this guide, we’ll explain the effects the lack of a Will has on your family and estate. We’ll provide the tools to ensure your final wishes are followed with care when you’re gone.
What does intestate mean?
When you pass away with or without a Last Will and Testament, the courts will use one of the two terms to describe your estate:
- Testate is when you pass away with a Will. First, the court determines the validity of your document. If it’s valid, your executor distributes your assets according to your finalized wishes.
- Intestate is when you die without a Will, and state laws determine the distribution of your assets. Intestate estates still go through the probate court but follow a longer process. This is also called dying intestate.
The court may determine you have an intestate estate if your Will isn’t valid. A Will may be considered invalid in situations such as when:
- The court determines you were not of sound mind when signing your Will, also known as lacking testamentary capacity
- Your Will isn’t appropriately signed according to state law (e.g., it isn’t signed in front of a witness)
- You have multiple Wills, or multiple versions of your Will, and the court cannot determine which Will reflects your intentions.
If you already have a written Will, keeping it updated and valid according to your state’s laws is important. Failing to do so may result in your estate being governed by intestate laws.
What happens if I die intestate?
Usually, when someone has a valid Will, their estate will go through probate to validate the documents. Once a judge determines the documents are valid, an executor divides the estate per your last wishes.
On the other hand, if you don’t have a Will and die intestate, your family and estate will have to follow a much longer probate process. Without any documents giving details of an executor, beneficiaries, and your property, a probate judge will have to look to state laws to start the distribution of your estate. The process typically goes like this:
1. Appointing an administrator
One of the first things the probate judge does when they have an intestate estate is appoint an administrator. This person acts as an executor. It’s important to note that this administrator may not be someone you want handling your estate. The probate court appoints an administrator based on state laws. Usually, family members are considered first to be an administrator.
For example, in Washington, a spouse or registered domestic partner is the first person entitled to be an administrator. Following a spouse is next of kin, such as children, parents, siblings, etc. The court may even appoint guardians, conservators, and creditors as administrators.
When you don’t have a Will naming an executor, family members must petition the probate court to be the administrator of your estate. This is called a petition for letters of administration.
Waiting for the judge's decision on a petition adds more time to finalizing the estate. If no family comes forward and other entitled administrators waive their rights, the court chooses a competent person as an administrator of your estate.
2. Identifying assets and heirs
Once appointed, the administrator must locate and gather all of the information on the deceased’s property, assets, and debts. This search requires access to bank accounts and legal documents, and it takes time when no instructions are left.
While conducting their search, an administrator must also find all living relatives who may inherit from your estate. This includes any relatives that you may have cut contact with for personal reasons.
When someone dies intestate, administrators sometimes need to hire third parties (e.g., private investigators) to find everything, costing more money and time to finalize their estate.
3. Distributing assets and paying debts
Once the court and administrator have all the details of your estate, they assess your property and assets.
The administrator uses your assets to pay any outstanding debts. Then, they’ll divide any remaining assets and property amongst any heirs (i.e., family members).
A judge supervises the administrator to ensure they assess and divide the assets according to intestate succession laws.
Intestate laws by state
Each state and the District of Columbia has legislation that outlines the process and distribution of intestate estates. You can find your state’s legislation below.
How does intestate succession work?
Intestate succession is the order of inheritance established by state law to determine the beneficiaries of an intestate estate. This is also known as:
- Order of priority of succession
- Order of beneficiaries
- Order of intestacy
- Line of inheritance
- Intestate heirs
The order generally begins with a surviving spouse and direct descendants, also known as lawful issue (i.e., children and grandchildren). If you have no spouse or children, the court continues down the line of inheritance for intestate property distribution. In most states, the beneficiaries are:
- Spouse, children (biological and adopted), and grandchildren
- Parents (who did not give up their legal parental rights)
- Siblings, nieces, or nephews
- Grandparents, aunts, or uncles
- Extended blood relatives
If an administrator finds no living relatives, your estate passes to the state under probate laws, also known as escheat.
How does spouse entitlement vary by state?
Even though spouses are at the top of the list, your spouse might not inherit everything if you don’t have children. Some states divide property between a surviving spouse and other relatives.
For example, if you reside in Texas, your spouse won’t inherit everything if your parents or siblings survive you. Suppose both of your parents are still alive when you pass away, and you have no siblings. Your spouse receives all shared community property, all your personal property, and half of your land. However, the court divides the other half of your land equally between your parents.
Contrastingly, in New York, if a spouse survives you and you have no children, the entirety of the estate goes to your spouse.
In some instances, an ex-spouse may also be able to inherit property if your divorce isn’t finalized. Without a dissolved marriage, the judge ultimately decides if your estranged partner is entitled to their spousal inheritance rights.
If you wish for your estate to go to someone else as you’re separating from your spouse, update your Will.
Each state determines a formula for intestate succession, so the exact division of an estate varies. Look to your jurisdiction's laws to see what may happen to your estate if you don’t create a Will.
Who cannot inherit from an intestate estate?
Intestate succession laws focus primarily on spouses, direct descendants, and blood relatives. If state laws do not name a relationship, the court may not consider them a beneficiary. This might mean some of your loved ones and friends will not inherit from your estate if you don’t create a Will.
For example, states generally don’t recognize an unregistered domestic partner in intestate succession. If your property isn’t in shared names and you don’t have joint accounts, the law may not recognize them to inherit like a spouse. If you have children, the estate will most likely go to them, meaning your partner may end up without any inheritance from your personal assets.
Some states may have exceptions for people like step-children. For example, California includes your stepchild as an intestate issue if the relationship began when the child was a minor and continued for your lifetimes, and there is valid evidence you would have adopted the child if not for a legal barrier that prevented the adoption. On the other hand, states like Maryland don’t recognize stepchildren if they’re not beneficiaries of your Will.
Creating a valid Last Will and Testament is the best way to ensure your property and assets go to the people you wish to receive once you pass away.
Property, assets, and intestate succession
How the state determines property ownership can vary based on property type and laws. For intestate estates, the court will distribute any property that would’ve been in your Will, such as:
- Real estate (e.g., a house, plot of land)
- Personal property (e.g., vehicles, boats, campers)
- Accounts only in your name
- Animals (e.g., pets and livestock)
- Personal items (e.g., collectibles, family heirlooms, furniture)
Even your 401K can be subject to succession laws if you don’t name a beneficiary to inherit the funds.
Items that are not affected by whether or not you have a Will include:
- Property, assets, and accounts held in joint tenancy with a right of survivorship
- Property held in a Living Trust
- Life insurance proceeds
- Payable-on-death bank accounts
Some states also regulate shared property, income, and assets between spouses. This kind of property is called community property or marital property. In states that recognize this, any property and income earned in a marriage are considered equally owned by both spouses regardless of who earned or purchased them.
If you die intestate in a community property state, shared property and assets automatically go to your surviving spouse. These states include:
Texas also has community property laws, however, your surviving spouse will only get all of the community property if you do not have any surviving children from another relationship (i.e., children from your previous marriage)
What happens to minor children in intestate estates?
Intestacy can majorly impact minor children. If you’re the only surviving parent with custody and you die without a Will, you won’t have a say on who raises your minor children.
When there is no valid Will to appoint a legal guardian, it’s up to the court to determine guardianship. A court-appointed guardian will have physical custody of your child and overlook their well-being, inheritance, and financial matters until they’re an adult.
The courts consider the best interest of your child and state regulations when establishing guardianship. This includes opportunities for family or someone close to your family to petition the court for custody. However, whoever the court eventually appoints may not be someone you would want to care for your child once you’re gone.
For example, if both parents pass away or become incapacitated in Florida, the court will appoint a family member or a Florida resident to be the guardian of a minor. If an adult wishes to take on your child's responsibility, they may apply to become the guardian. If your child is 14 or older, the court will also consider their views in making a final decision.
In addition to guardianship, minor children cannot directly inherit any of your property and assets. If your spouse and children survive you, they’ll split the estate according to succession laws, but your spouse will overlook the estate until the children are adults. If your children are underage and don’t have another parent to look after them, a legal guardian will manage anything they inherit until they reach the age of 18.
A Last Will and Testament is an essential document for parents. If you want someone specific to care for your children and manage their inheritance, you must name them in your Will.
How long does it take to settle an intestate estate?
The time it takes to distribute your estate will vary depending on size, jurisdiction, and the location of your family. No matter the circumstances, intestacy can be a lengthy court process.
The process time can be prolonged further if someone petitions the court for a right to inherit from your estate. There is no guarantee of a favorable outcome for the petitioner. The court will distribute the estate to whoever it identifies as a rightful successor.
Having clear instructions in your Last Will and Testament accelerates the distribution of your estate. Beneficiaries won’t be left questioning your intentions as they’ll have a comprehensive list of everything in your estate and the courts will have concrete evidence of your requests.
Should I create a Last Will to avoid intestacy?
Yes, creating a Last Will and Testament gives you control over the distribution of your property to your chosen beneficiaries.
Your Will outlines all your final wishes for your assets, property, and any minor children you may have when you pass away. As you create your Will, discuss your plan with your loved ones and your executors so they understand how you’re distributing your property.
Updating your Will is crucial whenever a new life event occurs (e.g., a new child, separation, purchase of new property, or loss of a loved one). Updating allows you to add new beneficiaries as people come and go from your life. Keeping your Will updated can also help ensure the courts won’t find problems with the validity of your requests.
Other estate planning documents to help avoid intestacy
Several estate planning documents can assist your Will in helping make your wishes known after you’re gone. This can include:
- A Living Trust is a document that places assets or property into a trust to transfer directly to your beneficiaries after you pass away. This is helpful when you want to leave property to your children. You can give them access to the trust once they become legal adults. A Living Trust helps avoid a long probate process and allows a guardian to manage any inheritance for a minor.
- A Pour-Over Will is best used with a Living Trust. This document is a special kind of Will, which leaves instructions that a trust doesn’t typically carry (e.g., naming a guardian for a minor dependent). It also transfers any new or remaining property or assets into that trust when you pass away.
In an interview with LawDepot, customer Carolina D. said having an estate plan, particularly a Living Trust, gives her peace of mind for the future. She understands that without a documented plan, the state controls the distribution of an estate.
“In Spanish, there is a saying, you never know who you are working for,” she said.
In Carolina’s opinion, having an estate plan is “as important as having savings — as important as having money in the bank for an emergency.”
To further prepare yourself for the future, you should make a Power of Attorney (POA). This document gives someone you trust the ability to make decisions on your behalf. A Power of Attorney can let your chosen attorneys-in-fact assist with your finances, business, and more. This help is invaluable if you’re away for a time or if you become incapacitated.
Just like your Will, always keep your estate planning documents current. This helps ensure your wishes are followed in any situation that may take you away from your loved ones.
Keep all your essential estate planning documents safe and accessible to executors and attorneys-in-fact. LawDepot offers our specialized Estate Vault, which digitally secures all your documents in one place.
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