What Is Intestate? What Is The Difference Between Probate And Intestacy?

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A lady learning about what is intestate

If you die without an estate plan—a Last Will and Testament, a Power of Attorney, a Living Will, and so on—you will be considered “intestate.” In other words, there is no legal document that states how you want your assets distributed after death. When this happens, the state must intervene and determine who gets what based on your closest family members.

If you pass without a will, you are said to die intestate. Intestate laws vary widely from state to state, but they generally follow the same broad rules.

By default, everything goes to your spouse. Spouses have priority over children, parents or siblings in most states.

If there is no surviving spouse, everything goes to your children. If you have multiple children, they divide things evenly between them (if you have stepchildren or adopted children, they may not be treated the same way as biological children).

If you pass away without a will your assets are distributed according to state law. In most cases, this means your closest relatives will inherit your property. However, this can lead to major complications for your loved ones, including:

  • Family members arguing over who gets what
  • Unmarried partners being left with nothing
  • Creditors getting paid before family members receive anything
  • Children from other relationships inheriting part of your estate
  • The government seizing property that would otherwise be transferred to loved ones

To make matters worse, dying intestate can also mean your family members have no control over who takes care of minor children – which could mean they end up in the hands of someone else in the family or even placed into foster care.

The Differences Between Intestate and Probate

The difference between Intestate and Probate is an easy mix-up to make. While they sound similar, they are very different things. Let’s explore the differences between them and how they can impact the distribution of your assets.

Intestate is the legal term that describes when someone dies without a valid Will in place. This can be quite common as many people put off having a Will prepared or simply don’t update their existing Will after major life events like marriage or starting a family.

Probate is the legal process used to verify a Will is valid and appoint an Executor to administer an Estate. Probate is a court-supervised process that determines whether or not a document qualifies as a Last Will and Testament and whether it can be admitted to probate. If your loved one has died with a Will in place, you will need to apply for probate.

Probating a will means determining whether it is valid, identifying the estate’s assets and distributing them to beneficiaries. The executor named in the will, who may also be called a personal representative, has primary responsibility for probating the estate. If there is no will, someone must petition the court to serve as administrator of the estate.

The executor or administrator must determine which assets belong to the estate and which do not. Assets such as life insurance proceeds or retirement benefits that name specific beneficiaries are not part of the probate estate and usually pass directly to those beneficiaries outside of probate. All remaining assets, including those that name a beneficiary but do not have one listed, become part of the decedent’s probate estate. The executor must locate these assets, put a value on them and transfer ownership to beneficiaries once debts are paid and any taxes due are settled.

When there are no valid Wills in place, Intestate succession laws determine who receives property left by the deceased person and in what proportions.

Intestate Succession Laws

Every state has its own laws governing the distribution of assets when someone dies intestate. The laws can vary widely from state to state depending on the number of living relatives you have and the relationship between you and your relatives. For example, the law in Alaska is much more complicated than the law in New York since Alaska doesn’t recognize de facto parents or adopted children whereas New York does.

Now, if you have minor children and no will, the court may appoint a guardian for those children. But even if you do not have minor children, there are still rules in place that govern what happens to your assets. These rules are called intestate succession laws.

The intestacy laws don’t necessarily determine who gets what; instead, they define who has the authority to make decisions about your assets after you pass away. And whether or not you have a will can affect how much control you’ll have over what happens to your property after your death.

How to Avoid Dying in Intestacy

The best way to avoid dying intestate is to create a will prior to your death. A will is a legal document that states how you want your assets and property distributed upon your death. A will can go into great detail as to how much of your estate should go where and who should receive what when you die. A will can even state where you want your pets taken care of after you die.

The consequences of dying intestate can be severe and often result in property being distributed in ways which were not intended by the deceased or which were even contrary to his or her wishes. For example, should one spouse die intestate, then all of his or her property will go to the surviving spouse if they are still married and have children together. But if they are no longer married (even if they are still living together), then all of their children will inherit equal shares of his or her property while the surviving spouse inherits nothing.

The best way to avoid dying intestate is to draft a last will and testament and make sure that it is kept current throughout life’s changing circumstances. In cases where an individual does not want to draft a will, he or she should still make sure that their chosen beneficiaries have been named for any accounts (e.g., bank accounts, insurance policies, retirement accounts) which allow for beneficiary designation.