Intestate means someone died without a valid will. This can mean either they had no will or the will they had was unenforceable. Wills specify what to do with a person’s assets upon their death. Without a valid will, state intestacy laws determine how to distribute their estate.
Who Oversees Intestate Estates?
Whether or not a will exists, most estates must go through probate — the legal process of distributing a deceased person’s property. At the start of probate, the court appoints a personal representative to manage the decedent’s affairs.
If the person died with a will, the court typically approves the executor named in the will. But when someone dies without a will, the court will appoint an estate administrator to oversee the process. This person is often the next of kin, like the surviving spouse or an adult child.
Are Intestate Estates More Complicated?
Proper estate planning can help streamline the probate process. Intestate estates, however, are often more complicated, time-consuming, and expensive than those with a will. There are a few reasons why:
- They require determining, identifying, and finding heirs who may be difficult to locate.
- They often involve more forms, which cost more in filing fees.
- They can demand more of the estate administrator, who may request additional compensation.
- Probate courts may require surety bonds to ensure the administrator fulfills their legal obligations.
- More disputes may arise among potential heirs, increasing the chances of litigation and attorney fees.
Who Inherits Intestate Estates?
Wills allow people to determine where their assets go after they die. When someone dies without a will, the laws of intestate succession determine who inherits the estate. While the specific hierarchy varies by state, the order of priority is typically as follows:
- Spouses: Surviving spouses are usually among the first in line for an inheritance, but how much they receive depends on whether the decedent had children. It also depends on whether the state is a community property or common law state.
- Children: The decedent’s children typically receive equal estate shares. How much they inherit depends on how many children the decedent had, whether the decedent was married, and whether the decedent had children with someone other than their spouse.
- Parents: If the decedent had no spouse or children, their parents typically inherit the estate.
- Siblings: If the decedent had no spouse, children, or surviving parents, their siblings may receive the estate.
- Extended family: If the decedent had none of the above, the estate may go to remaining family members such as grandparents, aunts and uncles, nieces and nephews, and cousins.
- Escheatment: When no beneficiaries can be located, the government may take ownership of the estate assets.
Probate laws (or probate courts) also determine whether the following classes of heirs qualify for intestate assets:
- Legally separated and divorcing couples
- Common-law marriages and domestic partnerships
- Adopted children and stepchildren
- Children born outside marriage
- The offspring of deceased heirs
- Half-siblings
Which Assets Don’t Pass Through Intestate Succession?
Even if someone dies without a will, not all assets must follow the laws of intestate succession. That’s because some assets don’t go through probate at all. Instead, non-probate assets transfer title to the beneficiary or joint owner automatically upon the owner’s death. These include the following:
- Joint property
- Assets in a living trust
- Life insurance policies and retirement accounts with named beneficiaries
- Assets with transfer-on-death or pay-on-death designations
What Is the Intestate Estate Probate Process?
The two primary differences between dying with a will and without is who administers and who inherits the estate. However, the rest of the probate process works similarly for both testate and intestate estates.
Like an executor, the personal representative must do the following:
- Notify beneficiaries and creditors: Estate administrators must notify loved ones, beneficiaries, heirs, and creditors of the probate proceedings. How much time creditors have to make a claim against the estate varies by state.
- Catalog assets: Next, estate administrators must identify, gather, inventory, and value the decedent’s assets. They may hire professional appraisers as necessary. The administrator is also responsible for safeguarding property to shield it from damage, depreciation, and theft.
- Pay debts: The administrator must pay off outstanding debts before distributing assets to the beneficiaries. This includes creditor claims, funeral expenses, medical bills, attorney’s fees, administration costs, and taxes. The money to pay these debts typically comes out of the estate.
- Distribute assets: The last phase of estate administration is distributing the remaining property to the legal heirs. Once that is complete, the administrator can petition the probate court to close the estate.
How Long Does Intestate Probate Take?
Even with a will in place, a simple estate can take several months to clear probate. More complicated cases, including intestate estates, can take longer. In some cases, heirs may not receive their inheritances for several years.
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