Testate

An individual who dies with a valid will is said to have died testate, which means the will is legally enforceable and clearly establishes the intentions of the deceased. Testate is contrasted with the term intestate, which means an individual has died without a valid will.

Dying testate does not allow the beneficiaries to avoid probate court, but does allow the executor of the will to present the will in probate court. The court then reviews the will, determines if it is valid, hears objections, and supervises the process to distribute the property to the appropriate beneficiaries.

Dying intestate without a valid will

If an individual dies intestate and there is not a valid will that assigns an executor, the probate court determines who will fulfill that role based on state intestacy laws. Although state laws vary, generally, the surviving spouse or registered domestic partner will be appointed executor. If none exist, the children and other family members may be named.

Who inherits under Intestate laws?

State laws vary, but under intestate laws, spouses and registered domestic partners will generally inherit the largest share of the deceased’s assets. Children may also receive a portion of the estate. If there is no spouse or child, other relatives may inherit. Those who are not blood relatives, including friends, charities, and unmarried partners, generally do not inherit anything.

Are all assets passed through the will?

Many assets are not distributed through a will. Instead, the beneficiary is designated through the beneficiary designation forms of the specific asset in question. Assets which may not be distributed through the will include real estate, bank accounts, life insurance proceeds, assets held in joint tenancy, property held in a living trust, stocks, or other securities held in a transfer-on-death (TOD) account, and funds in an IRA, 401(k), or retirement plan with a named beneficiary.

Why do I need a valid will?

Having a valid will can ensure that a person’s assets are distributed according to their wishes rather than intestate succession laws.

Do you want the state to decide how your assets are distributed? They will if you do not have a valid will or trust which clearly defines your wishes. For example, if you have a beloved charity that you want to leave $100,000 to upon your death this will not happen under a state’s intestate laws. While your relatives who receive your inheritance may understand and grant your wishes, they are not legally required to do so.

If you are not sure about your legal rights or whether you have a valid will, it is time to discuss your property and assets with a estate lawyer who can ensure your wishes are followed.