What Is Intestate Succession?

Intestate Succession Defined

If you die without a will, what happens to your assets? Who decides where they go or what happens to them? Does your family have any control over these things?

When a person dies without a legal will, their estate can be passed to their heirs through intestate succession.

In this guide, you’ll learn:

• What is instate succession?
• Understanding key terms of intestate succession
• Who is in charge during intestate succession?
• And much more!

What Is The Definition Of Intestate Succession?

Intestate Succession refers to the law of the State in regard to the inheritance of property from a person who dies without leaving a last will and testament.

Accordingly, to carry out an “intestate succession” purely means to transfer something after the owner has died and in accordance with the State law of intestate succession.

Understanding Key Terms In Intestate Succession

Some intestate succession terms are obvious while others are not used how we generally interpret the words. For that reason, we’ve outlined some of the key terms used in intestate succession.

“Intestate”

Intestate often refers to a person dying without a valid will.

“Decedent”

A person who dies and leaves property to be distributed is often called the decedent.

“Heir”

The heir is the person who inherits property from the decedent. The heir is determined by a valid, legal will or by the State’s intestate law.

“Testate”

The term “testate” is used to define the act of having a valid will.

“Probate”

The legal process of distributing the decedent’s estate is called probate.

• Probate Court – Jurisdiction over a decedents’ estate belongs to the probate court. Some states refer to this as circuit, superior, common pleas, surrogate’s, or orphan’s court.
• Probate Estate – Probate estate refers to the property of a decedent that must go through the probate process. However, not all of the estate has to, or will, go through the probate process.

“Spouse”

If the survivor is legally married to the deceased at the time of death, the survivor can qualify as a surviving spouse.

It is usually clear who is and who isn’t married, but that is not always the case.

• Legally Separated/Pending Divorce – A judge may have to rule on whether or not the surviving member is considered a surviving spouse if the couple was separated or the divorce was filed prior to the death.
• Common-Law Marriage – State laws vary on the observance of common-law marriages. If your state does observe a common-law marriage, the judge may look for evidence that the couple was living together, intended to be married, or lived as if they were married.
• Same-Sex Couples – Now that all 50 states have legalized same-sex marriage, having a surviving spouse is quite common for same-sex couples. However, some states automatically converted registered domestic partnerships to marriages while some did not. It’s best to check the legal status of your relationship and your state’s laws in regards to same-sex laws as it pertains to intestate succession.

“Issue”

Some states use the word “issue” to describe who should inherit the estate in the absence of a will. These are typically direct descendants of the deceased person (children, grandchildren, etc).

“Children”

The term “children” seems clear and obvious, but there are some definitions inside of children that we want to make more clear.

• Adopted Children – Most states allow adopted children to inherit from their legally adoptive parents just as biological children can.
• Stepchildren – Most states do not include stepchildren (not legally adopted) during intestate succession.
• Foster Children – Most states do not issue an inheritance to foster children.
• Posthumous Children – A child who is conceived before the parent’s death but born after death is often called a posthumous child. In this case, the posthumous child inherits under the same intestate succession laws as other natural-born children.

“Siblings”

If the State’s intestate succession law includes the deceased’s “siblings” as heirs, it generally includes blood-related siblings and half-siblings.

Who Is In Charge During Intestate Succession?

If there is no valid will at death, state law provides a list of people who are eligible to fill the role of the executor. If the probate court is required, the court will choose someone based on that priority list.

Although not always the case, most states will name the surviving spouse as the first choice of executor. Adult children are typically next on the list followed by other family members.

Having very little to no control over your estate not only nixes your best wishes, but it can cause a lot of stress on your family. If you don’t have a valid will, we highly recommend you look into them. Learn more about getting a will here.