What Is Intestate, Definition

Intestate refers to passing away without a will. When a person dies intestate, it is the responsibility of the state's probate court to determine how their assets will be distributed. A testament presented to the court that was deemed invalid can also constitute an intestate estate.

• If a person dies intestate, they died without a valid will.

• If there is no will, a state probate court will determine the distribution of the deceased person's estate.

• Courts ordinarily establish a hierarchy, with spouses and other close relatives receiving assets first.

Understanding Intestate

When a person with a valid will dies, their assets will be distributed to the beneficiaries named in their will and through any trusts they may have created.

However, many people pass away without a will. A Gallup poll conducted in 2021 revealed that only 46% of Americans aged 18 and older had a will. Gallup found that the percentage increases with age, but even at age 65 and older, only 76% of Americans reported having one.

A person who passes away without a will is said to have died intestate. When a person dies " in intestacy," a state probate court must determine how their assets will be distributed.

It is crucial for the vast majority of people to create a will, frequently with the assistance of an attorney, to ensure that their assets will go to the individuals or organizations of their choosing. Otherwise, a court may decide to distribute the estate to individuals the decedent would never have selected. People should also ensure that their will is kept up-to-date in case their wishes change.

How the Probate Process Works When Someone Dies Without a Will

Typically, probate courts begin the process by appointing an administrator to oversee the deceased's estate. The administrator will compile a list of the decedent's assets, pay off any outstanding debts, and then distribute the remaining assets to the parties designated by the probate judge as beneficiaries.

In other words, an administrator serves the same purpose as an executor (a legal representative normally named in a will).

One of the administrator's responsibilities is to identify the deceased's legal heirs, which may include surviving spouses, children, and parents. The order in which heirs inherit a deceased person's estate in the absence of a will is known as "intestate succession." The court of probate will determine who receives what.

The distribution of assets can vary from state to state. In the majority of states, the deceased's property is divided between the surviving spouse (if any) and children (if any).

In states with community property, spouses are typically co-owners of all property acquired during the marriage and are entitled to at least half of the estate. Arizona, California, Idaho, Louisiana, Nevada, New Mexico, Texas, Washington, and Wisconsin, as well as Guam and Puerto Rico, are currently community property states.

In other states, primarily those with common law, the distribution hierarchy also begins with the surviving spouse. If there are no surviving children or grandchildren, they may receive less than half, more than half, or even the entire estate, depending on the court's determination.

If the deceased person was unmarried or a widow at the time of death, their assets will be distributed to any surviving children prior to any other relatives. If no surviving relatives can be located, the estate's assets will become the property of the state. This is known as "escheatment."

State laws governing the administration of intestate estates typically exclude close friends of the deceased from the list of heirs. Nonetheless, if the deceased had a joint account with the right of survivorship or owned property jointly with another person, the joint asset will automatically pass to the surviving co-owner (or parties).

What Does It Cost to Create a Will?

The lawyer group estimates that the cost of creating a will with a do-it-yourself kit can be as low as ten dollars. If you hire a lawyer (often a good idea), expect to pay anywhere from $150 to $1,000 or more for a simple will.

What Are the Benefits of a Trust?

A trust can be used to avoid the probate process, which is typically required for all wills, so that heirs receive their inheritances more efficiently. People who have trusts frequently also have a pour-over will to dispose of any assets not accounted for in their trust.

What Is a Last Will and Testament?

A testamentary will is an alternative term for a conventional will, also known as a last will and testament. The individual whose wishes are expressed in the will is known as the testator.

The Bottom Line

When a person dies without making a valid will, then they are said to have died intestate. A state probate court will then determine who will inherit their assets. Most people should have a will and keep it up-to-date to avoid this possibility and ensure that their assets are distributed to the individuals or organizations of their choice.