The legal term intestate succession refers to who inherits property when a person dies without a will. Whether you don't have a will, are considering making a will, or are a relative of someone who doesn't have a will, you should understand the basics of intestate law.
Understanding a few legal terms is necessary to any discussion of the distribution of property upon death:
- Decedent: a person who dies and leaves property to be distributed.
- Heir: a person who inherits property from a decedent, according to either a will or the state's intestate law.
- Intestate: not having a valid will. The phrase “dying intestate" means dying without a valid will.
- Testate: having a valid will.
- Probate: the legal process of distributing a decedent's estate.
- Probate court: a court that has jurisdiction over decedents' estates. In a few states, this is a division of the circuit, superior, or common pleas court. In other states, it is called by another name, such as surrogate's court or orphan's court.
- Probate estate: the property of a decedent that must go through the probate process. Property that is jointly owned or has a designated beneficiary may not need to go through probate and is not part of the probate estate. For example, real estate owned jointly with survivorship rights passes directly to the surviving joint owner. A financial account with a designated pay-on-death beneficiary goes directly to the beneficiary. Similarly, the proceeds of a life insurance policy go directly to any named beneficiaries.
Probate law and intestate succession
When a person dies, the probate law of her state governs how her property is distributed. Although probate law varies from state to state, there are some general concepts that apply everywhere. With or without a will, the estate must usually go through probate.
A valid will determines how the decedent's estate property is distributed. If the decedent did not have a valid will, the state probate law of intestate succession determines the distribution of property. The law of intestate succession may be viewed as the will the state legislature writes for you if you don't write your own will.
Probate laws outline an order of succession based upon the relationship of the heir to the decedent. Generally, the order is: spouse, children, parents, siblings, and children of siblings. If there are no living heirs in one category, the property goes to the next category. If there are no living heirs at all, the property goes to the state.
Of course, as with just about anything to do with the law, it's not quite that simple, especially when it comes to spouses, children, grandchildren, and further descendants.
Spouses and descendants
In most states, if the decedent leaves only a spouse and no children, the spouse inherits all of the intestate property. A few states provide for less if the decedent has surviving parents or siblings.
If there are children, most states provide for the surviving spouse to receive either one-third or one-half of the estate, with the remainder going to the children. Some states provide for a minimum dollar amount for the spouse plus a share of the balance. For example, in Hawaii, the spouse is entitled to the first $100,000 plus one-half of the rest of the estate. Some states provide less for the spouse. For example, in Rhode Island the surviving spouse is only entitled to the use of the real property during his lifetime. Laws may also differ in community property states.
When a child of the decedent has died, inheritance is typically handled depending on the following conditions:
- The deceased child does not have any children or grandchildren. In this case, the deceased child's share of the estate usually goes to the surviving siblings.
- The deceased child has children. In this case, the deceased child's share goes to his children. To extend this principle further, the share of any deceased child, grandchild, etc., passes to that person's descendants. However, this distribution process varies from state to state.
If a person dies without any surviving spouse or descendants, the state's probate law of intestate succession determines how the estate is divided among the surviving relatives.
Your best bet for making sure your estate is distributed according to your wishes is to make a will. An online service provider can help with your estate planning needs.
Find out more about Inheritance Cases
FAQs
The Bottom Line: Dying Intestate Means You Lose Your Say Over Your Property. When you die without making plans for your assets, the probate court will do it for you. It's vital to have a will if you want your assets to go to your family, friends or causes you care about after you die.
What are the rules for distribution of property in a situation involving intestate succession? ›
In an intestate situation, the surviving spouse receives all of the community property and a portion of the separate property based on a predetermined formula set out in probate law. If the decedent was not married but has children, then the children will inherit everything equally.
What are the general principles of intestate succession? ›
In respect of the intestate it may be thought an obliga- tion upon every man to provide for those which descend from his loins; and as the administrator is to discharge all other debts, so this debt to nature should likewise exact a distribution, to all that descend from him in lineal degrees, be they ever so remote. .
Who should get the most inheritance from a deceased? ›
Surviving Spouse: Inherits 100% of all community property always.
- Spouse and one child (of deceased): 1/2 of Separate Property, child other ½
- Spouse and two or more children (of deceased): 1/3 of Separate Property, children share 2/3.
The rules of intestacy may not accord with your wishes. Your spouse may be forced to sell the family home in order to pay a share to your children. You do not control who is chosen as guardian for your children. Your children or grandchildren may not receive the financial protection you desire.
What debts are forgiven at death? ›
During probate, the executor of the estate typically pays off debts using the estate's assets first, and then they distribute leftover funds according to the deceased's will. However, some states may require that survivors be paid first. Generally, the only debts forgiven at death are federal student loans.
What is the inheritance order? ›
Probate laws outline an order of succession based upon the relationship of the heir to the decedent. Generally, the order is: spouse, children, parents, siblings, and children of siblings. If there are no living heirs in one category, the property goes to the next category.
What are the general rules of succession? ›
Rule 1. ―The intestate's widow, or if there are more widows than one, all the widows together, shall take one share. Rule 2. ―The surviving sons and daughters and the mother of the intestate shall each take one share.
What happens when there is no heir to a house? ›
Inheritance hierarchy
If none of those relatives can be identified, your assets could go to parents, grandparents, siblings, nephews, nieces—or even the state. "With no will or next of kin, your assets become escheated—which is just a fancy way of saying the state lays claim to them," Bob says.
Who usually inherits an estate? ›
Your direct heirs usually include your spouse, children, and parents. Adoptive heir: This includes any adopted children you may have. Adopted children generally have the same inheritance rights as biological children. Collateral heir: Any of your less direct relatives are considered your collateral heirs.
i) Descendants – anyone in the direct line below the deceased i.e children, grandchildren, great-grandchildren and further down. ii) Ascendants – ancestors of the deceased i.e mother, father, grandmother, grandfather – anyone in the upwards line of relationship.
Does the oldest child inherit everything? ›
The thinking that the oldest child continually inherits the whole thing is a frequent misconception. In reality, inheritance legal guidelines vary depending on the US and state, and many factors come into play, such as the presence of a will, the type of belongings involved, and the household structure.
Who is not allowed to inherit? ›
Generally, children have no right to inherit anything from their parents. In certain limited circ*mstances, however, children may be entitled to claim a share of a deceased parent's property.
Who is first in line for inheritance? ›
In the absence of a surviving spouse, the person who is next of kin inherits the estate. The line of inheritance begins with direct offspring, starting with their children, then their grandchildren, followed by any great-grandchildren, and so on.
What is an example of a situation in which someone has died intestate? ›
An example of a situation where someone dies intestate is when they do not have a will in place, and their estate is left in the hands of the court. It is important to have a properly executed and up-to-date will to ensure that your wishes are followed after you pass away.
What can happen if an artist passes away without leaving a will or estate plan? ›
If you pass away without a Will (intestate), then state law will determine who will inherit your copyright. However, by letting your wishes be known through your Will or Trust, you can designate any individual or entity you wish.
What is the condition when a person dies without having left a valid will Quizlet? ›
Intestate- The state of condition of dying without having made a will.
What are the rules of intestacy in the United States? ›
The laws of intestacy establish a specific order of priority for the distribution of assets. Typically, a surviving spouse and children are given priority, followed by other close relatives, such as parents and siblings. If there are no surviving relatives, the assets may escheat to the state.
