Intestate Succession – Settling an Estate Without a Will

Intestate succession is the legal process that determines who inherits property when someone dies without a valid will. State intestacy laws establish a hierarchy of heirs, usually beginning with a surviving spouse and children, followed by parents, siblings, and more distant relatives. Because each state has different rules, inheritance rights and asset distribution vary by jurisdiction.

Confirming the Absence of a Will

Before assuming intestate succession applies, take every possible step to locate a will. Families sometimes believe a will exists but struggle to find it. To ensure no will is overlooked, follow these steps:

First, search common storage locations, such as safes, filing cabinets, desk drawers, and safety deposit boxes.
Next, contact the deceased’s attorney, as estate lawyers often retain copies of executed wills.
Additionally, check with the State Bar Association if the attorney has retired or the law firm has closed.
Finally, review financial records, emails, business cards, or other documents for references to an estate attorney.

What If You Still Can’t Find the Will?

The U.S. Will Registry provides a national database where wills are registered by their creators or attorneys. Consequently, this free tool allows individuals to search for a missing will using the deceased’s name, date of birth, and state of residence.

Distinguishing Probate and Intestate Succession

Understanding the difference between probate and intestate succession is crucial. Probate is the court-supervised process of validating a will and distributing assets. However, intestate succession applies when no will exists, and state laws determine how assets are divided.

Assets Not Governed by a Will

Not all assets go through intestate succession. Some pass directly to beneficiaries, including:

Life insurance proceeds with designated beneficiaries.
Joint tenancy properties, which transfer to the surviving owner.
Assets held in living trusts.

To determine ownership, individuals should review financial accounts and property deeds to identify designated beneficiaries.

Initiating Probate: Court Procedures

When intestate succession applies, the estate enters probate. The probate process includes:

• Contacting the Probate Court – Locate the probate court in the deceased’s jurisdiction.
• Providing Necessary Information – Submit details such as the deceased’s name, date of death, and residence.
• Appointing an Administrator – Since no will names an executor, the court appoints an administrator, typically a family member.
• Publishing Notice to Creditors – Legal notices inform creditors of the death, allowing them to file claims.
• Inventorying and Appraising Assets – The administrator catalogs assets and obtains valuations.
• Settling Debts and Taxes – The administrator ensures debts and taxes are paid before distributing assets.
• Distributing Assets – The administrator allocates assets based on intestate succession laws.
• Closing the Estate – The administrator submits a final report, and the court approves estate closure.

Understanding the Order of Intestate Succession

The laws of intestate succession determine who inherits in the absence of a will. While specifics vary by state, the general order of heirs includes:

• Surviving Spouse – Often inherits the largest portion.
• Children – If there is no surviving spouse or remaining assets, children inherit next.
• Parents – If there is no spouse or children, parents inherit the estate.
• Siblings and Their Descendants – If parents are deceased, siblings and their children inherit.
• Grandparents and Extended Family – If no closer relatives exist, inheritance may pass to aunts, uncles, or cousins.
• State – If no legal heirs exist, assets may be escheated to the state.

Rights of Spouses, Children, and Remaining Family Members

Rights of a Surviving Spouse

The rights of a surviving spouse depend on the state’s intestate succession laws:

In community property states, the surviving spouse may inherit all marital property acquired during the marriage.
In common law states, the spouse often receives a significant portion of the estate, sometimes the first percentage (e.g., $50,000) plus half of the remaining assets.
If the deceased has children from another relationship, the spouse may receive a reduced share, with the remainder divided among the children.
Moreover, some states allow the spouse to claim a family allowance or a spousal elective share, which provides financial support regardless of intestate laws.

Related Article: Elective Share | Spousal Inheritance Rights

Rights of Children

Children’s inheritance rights vary based on state law:

If there is no surviving spouse, the entire estate typically goes to the children, divided equally.
If a spouse exists, the children may share the estate with them, often receiving half or a designated percentage.
Adopted children inherit the same as biological children.
Stepchildren usually do not inherit unless legally adopted, but some states make exceptions.
Children born outside of marriage may need to prove paternity to claim inheritance.

Rights of Other Family Members

If no spouse or children exist, the estate passes to:

Parents – If still living, they typically inherit the estate.
Siblings and Their Descendants – If no parents are alive, siblings inherit, and if deceased, their children (nieces and nephews) may inherit.
More Distant Relatives – Grandparents, aunts, uncles, and cousins may inherit if no closer family exists.
The State – Consequently, if no legal heirs are found, the estate escheats to the state.

CLICK HERE FOR INTESTATE LAWS FOR EVERY STATE

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Final Summary

Intestate succession governs estate distribution when no will exists. This guide has covered:

• The importance of confirming the absence of a will.
• The distinction between probate and intestate succession.
• The steps in the probate process.
• The legal hierarchy for inheritance.
• Special circumstances that may affect inheritance.
• The rights of spouses, children, and remaining family members in intestate succession.

By understanding intestate succession, individuals can navigate estate settlement efficiently and ensure a lawful distribution of assets.

Don’t Have a Will or Need to Update Yours?

The U.S. Will Registry offers a FREE online will program, allowing individuals to create a legal will from home. Since drafting a will ensures your wishes are legally documented, it prevents intestate succession from determining asset distribution.

 

FAQ Related to Intestate Succession