A simple will allows you to specify the distribution of your property in the event of your death, ensuring that assets go where you want them to go. If you haven’t prepared and executed a will (or taken any other estate planning measures), your property must still be divided in the event of your death. The title to certain assets must be legally changed. How does that happen when there’s no will to provide direction? It’s done pursuant to the laws of intestacy in the state where you live.
Intestacy refers to the legal situation when a person dies without a will and has a positive net worth at the time of death (i.e., owns property with a total value greater than their outstanding obligations). Such a person is considered to have died intestate, or “without a testament/will.”
In the United States, intestacy varies significantly from state to state. Some states limit the distribution of assets to only direct descendants, whereas other states allow inheritance by siblings, more distant relatives, and even unrelated individuals who were financially dependent on the decedent.
If you die without a will, your survivors may still need to take your estate through the probate process, depending on what you own at the time of your death. If probate is necessary, and you leave no will, then your survivors must notify the court that no will exists. Though the rules and circumstances vary from state to state, each jurisdiction has some mechanism for appointing a person to oversee the orderly distribution of your estate. That person—usually referred to as an “administrator,” and similar to the executor of a will—must divide property according to the rules set forth in state statutes.
The specific distribution rules differ from state to state, but most jurisdictions provide only for the transfer of property to a surviving spouse or registered domestic partner and blood relatives. While certain beneficiaries (e.g., spouses and children) are always entitled to a share of the estate, each state has its own set of hierarchical rules that applies to other blood relatives—for example, parents may be entitled to a share only if there is no surviving spouse and no surviving children, siblings may be entitled to a share only if there are no surviving parents, and so forth. It’s also important to understand that virtually every state prohibits a person from being an heir if they caused the death or otherwise engaged in criminal acts against the deceased.
Technically, an “heir” is someone who, under the applicable state intestacy laws, has the legal right to inherit property from a person who dies without a will. Persons with the right to receive bequests under a valid will are referred to as “legatees” or “beneficiaries.”
An heir has the right to submit the estate of a deceased person to the probate court for administration and distribution of assets. Heirs have the right to have the probate court appoint an administrator and to receive property in accordance with state laws of intestacy.
If you die without a will, your property may still be subject to the probate process. Instead of being dictated by the terms of a will, the distribution of your assets will be determined by state intestacy laws, which set forth default rules regarding who has a right to inherit from your estate, in what percentages, and in what order.
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