Intestacy

Intestacy is the act of dying without a valid will. If this occurs the decedent has eliminated their right to determine how their assets should be distributed at the time of their death, and instead, allows the state to determine asset distribution according to state intestate laws. Intestacy does not occur if a person with a sound mind, who is over the age of 18, creates a will or trust to allocate their assets and ensures the will is legally signed, witnessed, and executed.

Unfortunately, dying without a will can be disastrous for your heirs, especially if you have a large amount of assets to distribute. Not only will your property potentially not be divided how you would have chosen, it increases the chance for litigation and increases tax liability at the time of distribution.

Testacy Proceeding what is it?

If there is a question about the validity of someone's will or whether they have a will there will be a testacy proceeding. The testacy proceeding must be scheduled after the death of the decedent and before the distribution of the decedent's assets. If the court determines there is not a valid will, the court will determine the decedent has died intestate. The court will then distribute the estate according to the proper intestate succession laws.

Intestacy and determining an heir

So what happens if you die without a valid will? Under intestate succession laws the majority of your property will be left to a surviving spouse, your child, or another blood relative (if a spouse and child do not exist). In most cases state laws allow a surviving spouse to get a majority of the property, but if decedent is not married or there is not a surviving spouse the distribution of the estate may be a bit more complicated.

For example, in Pennsylvania, if there is no spouse the estate will first go to children or grandchildren, next to surviving parents, next to siblings, nieces and nephews, next to the decedents grandparents and finally to uncles, aunts and cousins. If the state cannot find any heirs the estate will be given to the Commonwealth of Pennsylvania.

Other considerations of Intestacy

Other state laws allow for the survivors of heirs to inherit assets, including the children of an heir who has died. States may also require heirs to survive a certain amount of time after the death of the decedent; some states do not have this requirement. Consider also, many contractual agreements (i.e. life insurance and retirement accounts) may have a designated beneficiary and will not be affected by intestacy laws. Talk to a lawyer if you have questions about intestate laws or believe you should receive property or assets from another relative who has died intestate.

Intestate and guardianship of minor children

Unfortunately, if you have not created a will or appointed a guardian for your minor children at the time of your death the court must appoint a guardian based on the state's laws. State laws vary, but generally the court will appoint a grandparent or another close relative to care for the child. Dying without a valid will can be especially detrimental for your child who may not be reared by someone who is best suited for the job or who shares your values.