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What is Intestate Law?

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  • Written By: Alexis W.
  • Edited By: Andrew Jones
  • Last Modified Date: 06 November 2016
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Intestate law governs what happens to a person's assets, property, and goods when that person dies without a will. Typically, a deceased person leaves behind an estate of some form, whether it is a home, money, or some other type of tangible goods. That estate must be distributed to the heirs.

When a person dies with a will, his assets are distributed through the probate process. The will is read, and the executor of the estate distributes assets according to the terms defined in the will. The court oversees the probate process, but does not determine the distribution of assets.

If a person dies without a will, however, typically he or she still has possessions that must be distributed. A person who dies without a valid will is said to have died intestate, and the court must distribute their possessions for that person. The court uses intestate law in order to determine the distribution of assets.

Because intestate law is a form of property law, it is made on a state-by-state basis. States have the strongest interest in the distribution of property within their borders, so they have the right to make these laws, not the federal government. As a result, intestate laws vary from jurisdiction to jurisdiction, and from one state to another.

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Generally, however, intestate laws dictate that property is distributed to the closest living relative(s). Typically, if a decedent has a spouse, intestate law dictates that his property and possessions will go to his spouse. Children are next on the list, followed by surviving parents, followed by surviving siblings.

The intestate law spells out proportions of the estate that go to each family member or party, and also explains the hierarchy of which family members are considered to be the closest living relatives. The court will make determinations based on intestate law if there are questions regarding the distribution of property or the value of property. If a decedent has no living relatives and he dies intestate, his money and assets generally go to the state.

When property is distributed through intestate law, the process can take a long time as the case must go through the court system. Details also become public record, as it is part of a public court decision. Furthermore, the heirs who inherit the property typically have to pay much higher taxes, as well as court fees, when they inherit money through court distribution of assets for a person who dies intestate.

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Soulfox
Post 3

@Markerrag -- sadly, such contests happen more frequently than you might think. Why? Pure old spite. In Melonlity's scenario, Joe wanted to spite Ben and Ben might respond by spiting him right back by attacking Fred. Ben might not end up with anything, but Fred won't either and that might be just fine with Ben.

When people start tossing lawyers at each other because they are more interested in "principal" than cash, that's when estates get whittled down to nothing in probate court.

What could Fred have done to make sure there wouldn't be any probate fight raging in the future? He could have simply found out the minimums Ben was entitled to under the state intestate laws and given him that much and not a penny more.

Markerrag
Post 2

@Melonlity -- that is true, but how often do people actually contest wills? It makes sense if you are talking about piles of money but might not be worth the trouble if you are talking about a small estate that can be reduced to nothing by legal, court and administrative fees that are run up during a will contest.

Melonlity
Post 1

Keep in mind that intestate laws in a lot of jurisdictions can be used even if someone has a will. Let's say that Joe has two sons, Fred and Ben. Joe loves Fred, hates Ben. Joe decides to leave everything to Fred and leave Ben with nothing.

In that case, Ben could bring an action in probate court and possibly force the court to distribute the estate according to intestate laws. Those laws, see, generally state that relatives of the deceased are entitled to a certain percentage of an estate. Ben could sue and demand that he be given the minimum percentage he is due under the law.

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