Intestate succession, or intestacy, is a set of laws that govern what happens to a person’s estate when they die without a will. These estate planning laws are in place to standardize a process around distributing a person’s assets fairly after they pass. Intestacy laws vary from state-to-state, but there is a fairly similar hierarchy around who will placed in charge of this process and who will receive any assets based upon situational factors such as one's marital or parental status, and whether the deceased individual is survived by their spouse, children, parents, or even their siblings.
What if a single person dies without a will?
This can get a little complicated, and can vary slightly state-by-state, but the common hierarchy is typically children of the deceased, parents and then siblings. After that, descendants of siblings come next, and finally, a halfway split between the deceased person’s mother and father’s relatives.
Of course, children of the single person are first in line, and they will be awarded assets equally. If one of the person’s children is no longer living, and has descendants, then they will receive that heir's portion.
What happens if a married person dies without a will?
As you can imagine, in most cases, assets will be awarded to the surviving spouse in the event of a person dying without a will. However, state laws vary on property rights, and if a person owned property titled in individual name as opposed to titled jointly, then the list of qualified heirs could be expanded to siblings and parents.
If an individual dies while married and also has children with their spouse, it's fairly routine for all of their assets to pass directly to the surviving spouse. If however, if the deceased person also has children from another marriage, then their assets could be divided with the surviving spouse receiving a halved portion, and the children receiving the other half.
What happens if persons in a domestic partnership die without a will?
A significant legal benefit of marriage are the legal protections afforded to couples. This is important, because if a person dies without a will, and is in an unmarried relationship or domestic partnership, then it is very likely that none of the assets will legally pass to the surviving unmarried partner since intestate laws only designate relatives as beneficiaries.
Because family and marital laws also vary by location, being in a domestic partnership presents a particularly strong case for seeking legal counsel around the best way to document one's dispositive wishes through a Last Will & Testament or Trust.
Special circumstances of intestacy
There are also a couple of instances where intestacy will kick in even if there’s a will in place. Those special circumstances include:
If the estate plan is not properly drafted
Just because a person left behind their end-of-life wishes, doesn’t mean it’s legally binding. There are many state laws that go with this process, and if the will is not properly drawn up then it could be ordered null & void, which would then spring intestate laws into effect to help decide what should happen next. Often times this comes into consideration when multiple wills have been drafted within a similar time frame or if not properly drafted as an amendment or codicil intended to supersede any prior documents.
If a last will & testament is not properly witnessed
You've taken time to write own your wishes, but have they been properly witnessed? While many jurisdictions provide some latitude for unwitnessed wills, there are very specific requirements which must be made in order for these to be accepted. These scenarios typically refer to what's legally called a Holographic Will, or possibly a Soldier's Will, and require that the wishes are handwritten and signed by the testator (author).
But in this day and age of digital, when's the last time you handwritten anything longer than a grocery list or thank you card? If you decide to type and print your wishes, it's important to know that you'll need to have those publicly witnessed by two or more unnamed friends or better yet, a public notary. Without signed witnesses, a self-created last will & testament will be quickly challenged and dismissed as invalid.
If there are assets not mentioned in a will
A person may write a will, but continue to acquire assets afterwards. While a properly drafted estate plan is written in a flexible way such that intends to remain applicable as your marital, parental or economic situation changes, it's also not uncommon for individuals to have certain life events which don't completely align with a previously drafted last will & testament. In these cases, one's will could be challenged for further interpretation or simply dismissed such that intestate laws kick in to govern what happens to particular assets not mentioned or covered in the will.
Out of state assets
Owning property or assets in multiple states can create complications since each state has it's own laws affecting ownership and the process of estate settlement. If an individual dies leaving real estate or tangible personal property in his/her individual name in a different state from where they lived, local intestacy laws could apply if appropriate pre-planning steps were not taken before their death.
While every situation is unique, there are a few steps estate planning or tax advisors may recommend, such as;
- Change individual title of ownership by adding a co-owner to the out-of-state property
- Place the assets into a trust, LLC or family partnership
- If applicable, make use of any primary or contingent beneficiary designations
- Sell or gift the property to fulfill any philanthropic legacy wishes
In most cases, whether an individual died testate (with a will) or intestate (without a will), if they were not survived by any family members or named beneficiaries, then their property and assets will actually pass into the possession of the state. This process is knows as escheating and provides the government with the right to take ownership of any estate assets or unclaimed property to avoid confusion or situations of 'limbo' wherein no related parties exist or can be found. In these cases, the government state generally sells the escheated assets and treats the proceeds as additions to state funds.
Everyone dies with an estate plan... what varies is whether it's written by you or written by the government.
As mentioned before, intestacy laws vary from state-to-state and can quickly differ from what most individuals would prefer happens to their assets after their death. For these reasons, it's a good practice to routinely review your estate plan every few years or following life changing events like marriage, divorce, having children, moving to a new state, receipt of inheritance or other significant changes in economic status. Intestate laws exist because a surprisingly large number of individuals pass away without valid estate plans or last will & testament. If you don't like the concept of trusting the government to make the decisions on who will receive your legacy, then now is a great time to talk with an attorney or advisor to help draft a will.