Intestacy: What Dying Intestate Means for Estate Succession

Intestate, or intestacy, is the term for dying without a legal will (last will and testament)^[0]

To avoid dying intestate, make a valid will. You can do this with an estate planning attorney or an online will-maker. Some states allow handwritten wills.

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• Your property may not be able to pass to your descendants until a state probate court names an estate 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 assets out of your will.

• Where and how your estate is distributed depends on your state of residence. Usually, there is a set order of relatives that your property goes to if you die intestate. For example, the court may decide that your assets go first your spouse, or equally your children if you have no spouse, or equally to your parents if you have no children, or equally your siblings if you have no parents, and so on. The state's order may not be your preferred order. In some states, a percentage of your estate may be split between family members.

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• 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, and you may be able to reduce estate taxes in advance with estate planning tools such as irrevocable trusts.

• Your estate may be deemed intestate if a probate court can’t validate your will. Including a self-proving affidavit (a statement testifying that you were of sound mind when you wrote your will) can help. Any assets that aren’t directly addressed in your will may also have to go through an administration proceeding, so it’s important not to leave anything out.

» MORE: Learn what a pour-over will is

Every U.S. state has its own intestacy laws, which determine the order of inheritance — called succession — for your assets if you don’t leave a will.

The percentage distributed to each person can vary, and situations such as blended families can complicate the line of succession.

Usually, succession falls in this order^[0]

1. A surviving spouse.

2. Direct descendants, including children and grandchildren.

3. Parents.

4. Siblings.

5. Nephews and nieces.

6. Grandparents.

7. Aunts, uncles and cousins.

Here’s what intestacy laws look like in 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 typically spouses inherit 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^[0]

  California Legislature Legislative Information. Intestate Succession Generally. Accessed Feb 7, 2024.

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• New York has a similar line of succession, but if there is a surviving spouse and children, typically the spouse inherits the first $50,000 plus half of the remaining assets. Children inherit the remainder. If a child passes away first, the child's children take their place in the line of succession^[0]

  New York State Senate. Chapter 17-B Estates, Powers & Trusts. Accessed Feb 7, 2024.

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• In Florida, if there are biological children, typically a surviving spouse still inherits the entire estate. If the deceased has children who aren’t related to the spouse, such as from a previous marriage, the estate is split in half between the spouse and the children^[0]

  Florida Legislature. Florida Statutes, Chapter 732 part 1. Accessed Feb 7, 2024.

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• In Texas, if there are surviving parents and a spouse but no children, typically the spouse inherits the community property and half of the separate real estate, and the deceased's 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^[0]

  Texas Legislature. Intestate Succession. Accessed Feb 7, 2024.

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» MORE: How trusts work and how to set one up

For the specific intestacy laws for all 50 states, see the dropdown below.