Wills Dying Without A Will: Intestate Law & Probate Court

  1. In the event that you die with having a will, also known as “intestate”, a court of law may decide who will inherit your home, your bank account and who will raise your minor children. "Probate" is the process where a court of law supervises the distribution of property after a person dies. State intestacy laws govern distribution when a person dies without a will. As such, it is of paramount importance for an adult person to make sure that they have created a valid and enforceable will to prevent unrelated persons from deciding who will inherit their estate and take care of any surviving children.

    Probate Court - Intestate Proceedings

    If you die without a will, your estate will likely pass through probate court, a court having jurisdiction over the probate of wills and the administration of estates. A judge may decide who will raise your children based upon the court’s best guess on who would be the appropriate party to raise them with the best interests of the children in mind. The probate court and state law might determine who will receive the proceeds of your estate.

    If there is a living spouse or ex-spouse, that person will usually be awarded custody of the children. However, when a person dies without a will, other family members could also petition the court for legal guardianship and there could be many complications. This will typically occur when a family has had prior battles over custody of the children, such as where parents were divorced and the person who died had sole custody of the children. There may be valid reasons as to why the ex-spouse did not or should not have custody of the children, for example, where the deceased had some specific knowledge of the dangers the ex-spouse’s home presents for the welfare of the children. Custody battles are also common where probate proceedings include a sizeable monetary estate that will pass to surviving minor children.

    When someone dies intestate, the financial assets and personal property of the deceased may be distributed in such a way as the probate court designates, rather than how you would have really wanted it done. Money might be distributed under operation of law to people you did not intend to receive the proceeds of your estate. For example, if you wanted certain assets to go to your cousins John and Mary but did not designate this as such in a will, your entire estate could pass to other family members under operation of law, including a son you disowned or a wife whom you were going to divorce. A will is also extremely useful to dispose of business property. For example, you may own a business with a partner, and in the event of your death, you would want the partner to have the opportunity to buy the business in its entirety for a certain price or perhaps grant your shares to them.

    Should I Use Will Software and Create My Own Will?

    For simple matters and small estates, using a “do it yourself” will kit might suffice. When there isn’t much money at risk and where matters are relatively simple, choosing a quality will kit or software might be worth the small investment – but make sure it is from a reliable source! Where an estate may be of a reasonably good size or could be complicated (ex-spouses and children), one would probably want to hire an attorney to make sure that all the money passes to whom you intend. It is not worth the risk of not making a small additional investment to ensure that the large amount of money is secure. Below are some legal aspects about what will happen to your assets if you die intestate, without having a will.

    Intestate Succession and Escheatment Laws

    The laws of “intestate succession” concern how property is distributed to the heirs of a person who has died without a will or “intestate.” The law tries to partition an estate in the manner that many people might choose for their property to be divided. This is the “default” for distribution when a person does not designate the manner in which their estate should be distributed.

    In instances where a person dies without a will and surviving heirs, their property may “escheat” or pass to the state government. All right and title to the property will be transferred to the state. Each state has its own laws that govern intestate succession and escheat. New York State has one of the most complex escheatment laws, which also govern what to do with unclaimed property and assets. Before modern laws were passed to create a process and review by the court for escheatment, land immediately reverted to the state government if the owner died without a will and apparent heirs.

    Intestate succession laws will typically provide at least half of the estate to pass to a surviving spouse. Some states will follow the 1990 Uniform Probate Code while others will follow the laws of Community Property for distribution. For specific laws of your state, you can find articles by searching our site and also by finding and contacting an experienced Estate Planning Attorney who specializes in handling wills, trusts and estates in your state.

    Michael Wechsler

    Michael Wechsler
    Michael M. Wechsler is an experienced attorney, founder of TheLaw.com, A. Research Scholar at Columbia Business School and of-counsel to Kaplan, Williams & Graffeo, LLC. He was also an SVP and chief Internet strategist at Zedge.net and legal consultant at Kroll Ontrack, a leading service e-discovery and computer forensics service provider.


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