Estate Planning Guide

What is Intestate?

What is Intestate?

Someone who dies intestate died without a legal will. If there’s no will, what happens next depends on whether the person was married or has other relatives.

Stephanie Faris

Published April 20th, 2021

Table of Contents

Key Takeaways

  • Intestate is a legal term for someone who dies without a will.
  • If you die intestate, local probate courts will distribute your assets based on laws in your state.
  • Typically, all assets go to immediate family first, including a spouse or any surviving children.

Dividing assets after someone dies can be a convoluted process. Usually, the deceased has survivors, whether it’s a spouse, children, parents, or other relatives. The first course of action to take after a death is to look for a will. If there is no legal will, a deceased person is legally considered “intestate.”

The intestate definition is fairly straightforward. Someone who dies intestate died without a legal will. If there’s no will, what happens next depends on whether the person was married or has other relatives. Here’s what you need to know about dying intestate.

What Is Intestate?

Dying without a will can make things a little complicated. Survivors could debate the distribution of assets and, in the case of no known relatives, all the person’s belongings could be given to the state.

But just because you have a will, doesn’t mean it’s legal. A will has to be signed by the deceased person, who must have consented to the will’s contents. If the person’s mental state at the time of signing is called into question, the will could be deemed invalid.

Unless you have a legal trust established, probate courts need to weigh in on the assets of a deceased person regardless if they have a legal will or not. First, probate courts must ensure all debts have been paid out of an estate before the assets can be distributed. Once that’s done, the courts will either go by the will or, if there’s no will, use laws related to intestate succession to distribute the assets from the estate to survivors.

What Happens If Someone Dies Without a Will?

Dying intestate can be a bad thing. Even the most well-meaning relatives can surprise you when it comes to money. A will ensures that when you die, assets you own will go to the people you want to have them. Most importantly, though, it could keep your loved ones from battling over who gets what.

To understand the intestate meaning, it’s important to first know what qualifies as an estate. Your estate is the sum total of everything you own. It includes everything from investment accounts to your house, car, and even the silverware in your kitchen. If you die intestate, the court won’t have a will to guide the distribution of the items. The court will then have no choice but to follow local laws in deciding where those assets go.

If you have a spouse, dying intestate may not be as disastrous. Everything goes to the surviving spouse as joint property. Your spouse can then decide if items or funds need to be given to your other survivors. Courts use intestate succession laws to determine where the money goes when someone dies without a legal will.

Understanding the Distribution Hierarchy

Once you define intestate, it’s important to note how your local laws direct the distribution of funds. If someone dies without a will, most states will look at the immediate family first. Married couples are legally considered to share assets, so the estate will automatically go to the surviving spouse. But if there is no spouse, most states will then assign the assets to the children. For minor children, property will be sold and all the funds will often be put into an account for them to receive once they reach the legal age.

But what if an intestate estate has no spouse or children? When your assets fall under probate without a will, your assets will be divided based on the hierarchy set up by your state’s intestate laws. These are the general intestate classes, but the order can vary from one state to another.

  • Spouse
  • Direct descendants (children, grandchildren, great-grandchildren)
  • Parents
  • Descendants of parents (deceased’s siblings, nieces, and nephews)
  • Descendants of grandparents (deceased’s aunts and uncles)

Even if you have a will, if it’s decided not to be valid, the court will still have to go by intestate laws in your state to distribute the funds. Here’s what you need to do to make sure your will is considered valid.

  • Consider hiring a lawyer specializing in estate planning law. An attorney will know the laws specific to your state.
  • Date and sign the will. Get a signature from at least two disinterested (people not affected by the terms of the will) witnesses.
  • Even if it’s not required by law, consider getting your will notarized.
  • Create your will while you’re healthy. Some wills are contested when the deceased was in the latter stages of a disease. Having it in place and making small updates as needed helps protect against that.

Final Thoughts

When someone dies without a will, survivors must deal with the fallout. It’s important to put a will in place and make sure your loved ones know where to find it if something happens to you. We recommend working with a Certified Financial Planner® to get a full picture of your legacy goals and assets before drafting the will. From there, you can create a will that will ensure your loved ones are properly taken care of.

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Stephanie Faris

Stephanie Faris has written about finance for entrepreneurs and marketing firms since 2013. She spent nearly a year as a writer for a credit card processing service and has written about finance for numerous marketing firms and entrepreneurs. Her work has appeared on Money Under 30, The Motley Fool, MoneyGeek, E-commerce Insiders, and GoBankingRates.

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