What Does Intestate Mean?
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Intestacy, or “dying intestate,” happens if you die without leaving a last will and testament. When this happens, your state’s laws may determine how your property will be distributed, not you or your family.
Some people may believe that if they die intestate, they can avoid probate, which is the legal process for distributing your property after you die. But if you don’t have a will, your property may still have to pass through probate court, though the process may be called estate administration.
States have different laws for intestacy. In some states, your property passes through a chain of your closest relatives, starting with your spouse; in others, a percentage of your estate may be split between family members.
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Here’s what to know about dying intestate and how to avoid it.
What happens if I die intestate?
Your property may not be able to pass to your descendants until your state probate court can name an administrator to distribute it. This legal process is called an administration proceeding, which essentially requires the government to create a will for you. This process may also happen for any assets that aren’t directly addressed in your will, so it’s important not to leave anything out.
Where and how your estate is distributed depends on your state of residence. Usually, there is a set order of relatives that your property passes through, which may not be your preferred order.
Your family can contest the estate administration. This can be a costly and time-consuming process, and it could end with your assets going to someone you didn’t have a close relationship with.
Your estate may have to pay probate fees. This may leave less of your assets for your beneficiaries. Dying intestate can also affect your estate taxes. When planning for your estate, you may be able to reduce estate taxes in advance.
To avoid dying intestate, make a will. You can do this with an attorney or an online will-maker.
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What are the intestacy laws in my state?
Every state has its own intestacy laws, which determine the order of inheritance — called succession — for your assets if you don’t leave a will.
Usually, succession will fall in this order: a surviving spouse, direct descendants including children and grandchildren, parents, siblings, nephews and nieces, grandparents, aunts, uncles and cousins. However, the percentage distributed to each person can vary, and situations such as blended families can complicate the line of succession.
Here’s what intestacy laws look like for four of the most populous states. Each state has slightly different regulations.
California is a community-property state (along with Arizona, Idaho, Louisiana, Nevada, New Mexico, Texas, Washington and Wisconsin), so a spouse inherits all the assets if there are no living descendants. If there are biological children, the spouse inherits one-half of the community property (assets gained during the marriage) and one-half or one-third of the separate property (assets owned prior to the marriage), depending on the number of children, who inherit the remainder.
New York has a similar line of succession, but if there is a surviving spouse and children, the spouse inherits the first $50,000 plus half of the remaining assets. Children inherit the remainder. If a child passes away first, any children they have will take their place in the line of succession.
In Florida, if there are biological children, a surviving spouse still inherits the entire estate. If the deceased has children that aren’t related to the spouse, such as from a previous marriage, the estate is split in half between the spouse and the children.
In Texas, if there are surviving parents and a spouse but no children, the spouse inherits the community property and half of the separate real estate, and the parents inherit the remainder. If the spouse has children, the spouse inherits the community property, one-third of the separate property, and real estate. The children inherit the remainder. If the deceased has children that aren’t related to the spouse, those children inherit half of the community property.
For the specific intestacy laws for all 50 states, see the dropdown below.