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Intestate succession is a process through the property of someone who has died without a valid will is transferred to heirs in accordance with statute. In this case, rather than distributing property as specified in a will, the executor of the estate follows regional law when determining how to break up an estate. Intestate succession is actually quite common; even wealthy people sometimes neglect to make wills or draft wills which are not considered valid.
The term “intestate” means “without a will.” Someone can die intestate in the sense that a will was never written or cannot be found, even if people believe that it exists. There can also be situations in which there is a will present but it cannot be considered valid. This may be because it has not been prepared properly or because it lacks witnesses. More complex legal challenges to validity such as questions about whether or not the testator was of sound mind may be litigated in court by surviving family members.
When someone dies intestate and the assets of the estate exceed any debts, a problem is presented because the decedent's wishes are not known. By statute in most regions, the government dictates how estates should be broken up. As a general rule, the surviving spouse is favored in intestate succession, although some regions may also indicate that certain property should pass to children. In rare cases where someone dies with no surviving family members, the property may revert to the ownership of the government.
In the event that someone dies without a will, no executor has been named either. An executor is appointed by the government to process the estate and to ensure that everything is wrapped up and the assets are distributed appropriately under the laws of intestate succession. Lawyers are often asked to serve as executors in such situations and they can collect a fee for their services to the estate.
People can avoid intestate succession by writing a will, confirming that it is valid, and making sure that the location of the will is known to family members and friends. Many lawyers who help people write wills are also happy to store a copy of the will on their premises so that it will be readily accessible. Making a will is important even if people think that they do not have any assets; the will can be used to make special legacies which might not otherwise be honored, for example, and to make people aware of assets which they might not be familiar with, such as a safe deposit box at a bank.
If someone dies intestate, that is usually not the tragedy that people make it out to be. Each state in the United States, for example, has statutes that deal with how to distribute property if someone dies intestate and those laws pretty well mirror how people grant property through wills, anyway.
Of course, there will be plenty of problems if someone makes a bunch of promises to relatives about what they will receive from the estate and then dies without a will.
For example, let's say a father has a son and a daughter. The father promises the son that he will inherit the family home. If the father dies without a will, intestate laws will probably direct
the son and daughter to each inherit part of the home and that would lead to the house being sold and the proceeds split.
In other words, intestate succession isn't usually a problem but someone who knows specifically what property should be given to whom should take the time to put together a will.
Another good idea is to appoint both an executor and a back up executor in a will and make sure both of those people know about the will and have a copy of it and any amendments to it that come later.
It is strangely common for executors to not know they were appointed in wills or for families to not know where wills have been stored. Appointing an executor and backup and giving them each a copy of the will will save a lot of time and trouble down the road.
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