What is Intestate and How is it Different from Probate?

Photo by Xavier Mouton Photographie via Unsplash

Dying without a will is a scary prospect, but it’s also one that many people fear. You may think that your life is simple enough that you don’t need to write down your wishes for distribution of your assets. The truth is though that untangling an estate is time-consuming and complicated. Dying intestate is part of this complex issue. In this article we’ll answer the following question: what is intestate and how is it different from probate?

For example, who inherits your property if you die intestate? What happens if someone dies without an heir or family member left behind? And why the state should have no part in dividing up your assets after death.

What does intestate mean?

Intestate is another word for dying without a will. Maybe you have no legal documents to dictate what should people do with your assets. The one or both of the following two things can happen:

  • The state will distribute those assets according to its own laws. This is called probate.

  • Your family members will be able to file for guardianship of your children or for their custody (if the children are over 18 years old).

Intestate is a confusing term for people dealing with an inheritance, especially if they’re unsure of how it applies to their situation. there are different ways of intestacy that can lead to varying results when determining who inherits an estate. For instance, maybe you have a will but its fully or partly invalid. Or maybe it doesn’t account for all your assets.

Who will inherit my property if I die intestate?

When you die without a will (intestate), your estate will have to go through  what we call “intestacy laws.” These laws vary from state to state and they define property distribution. They typically provide for your spouse and children as the primary beneficiaries of your estate.

What happens if someone dies without a will and no family?

If you die without a will, there’s a set of laws that dictate how your property  distribution should take place. In some states, this might be the similar to the result of probate—in others, not so.

In California, if there are no known heirs (people who would inherit), then your estate will pass to the government. The state can then decide who gets your assets based on a list of heirs they have on file for each person in their database; these include spouse or domestic partner, children (or other issue), parents and siblings.

You can read more about different scenarios of dying without a will here.

Differences between intestate and probate

The term “intestate” refers to the state of affairs when someone dies without a will. The word can also refer to a person who has died without having made a will. We usually use it in reference to their whole estate – the assets that they leave behind.

When you create a will, you’re making legal arrangements for how people should distribute your property after your death. These rules differ from state-to-state, but there are certain things that always happen and that’s through probate. Some examples include:

  • All debts must be paid from the estate’s assets before any other distribution happens;

  • If there isn’t enough money left over after you pay the bills, then beneficiaries receive only what remains; and

  • Beneficiaries may not get everything they were expecting if other family members challenge their right to inherit.

From all this you can see that probate is a procedure, intestate is a status. They are actually two very different things although they both fall under estate and end-of-life planning.

How to not die intestate

It might sound simple but to avoid dying intestate, make a will. This is not something you can leave to your family to figure out. You need to name an executor and beneficiaries for all of your assets. If you don’t have a will and die without one, the state will decide about everything. And trust us, you don’t want that.  We’ve all heard horror stories about families breaking apart because of property division. This isn’t what you want at all!

To avoid this, take time now and make some decisions about who should get what when the time comes. First things first: name an executor for your estate (the person who’ll see through its distribution). Then name beneficiaries for each account. That could include your IRA, life insurance policies, retirement accounts. A last will should include details about anything that holds value or property that isn’t easily divisible among several people at once (such as real estate). To read more on Myend’s own comprehensive and easy-to-use last will click here.

How bad dying intestate really is?

There are many reasons to do your best to avoid dying intestate.

A probate court will always be part of the process of property distribution. After all a judge may decide that the family member(s) who are inheriting should receive exactly what you would’ve wanted them to receive. But even if this happens, they’re probably not going to know your wishes for sure. Don’t let them wonder. Instead give them the peace of mind they deserve.

What the state decides as best for your property might not be in line with what you would have included in an estate plan. Now of course this isn’t always the case; some states actually have laws regarding intestacy (as well as other types of estates). These are prioritizing your next of kin or people who are important for most of us.

Final Thoughts

To sum it  all up: Dying intestate means that the state has to sort out your estate. The state will decide who gets what and how much they get.

Intestacy may seem like an easy legal process to prevent, but it’s not. It requires a lot of paperwork and planning in order to avoid complications and make sure that everything goes smoothly. If you’re interested in learning more about the subject, check out our blog posts on probate and probate duration on our website!

Myend offers the perfect estate and end-of-life planning for all! This way you don’t have to face any of the issues we mentioned in this article. Have a look here to learn more. And if you’re ready for action, sign up today for your free account! The estate planning of the future is here today.

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Myend is not a law firm, it does not engage in the practice of law, and it does not render any official legal advice. Therefore, you are hereby advised to seek your own legal counsel regarding any legal issues. Myend’s articles are meant to be taken as suggestions and therefore Myend carries no responsibility for the user’s actions.