If a person dies without first creating a will, their property will be distributed by the state. This process is called “intestate succession”, and is carried out by a judge according to state statute. Intestate succession is also relevant in situations where the decedent’s will is ruled to be invalid, or does not cover the entire estate. The purpose of these laws is to distribute property in a way that the courts assume someone would want their property distributed, and to take care of those who are most likely to need financial assistance after a family member’s death. However, given the extreme variety of issues we all face in our personal and family lives, it is not hard to see how intestate succession is probably not the ideal method for most of us to have our estates distributed. This is because the formulas used by intestate statutes are one size fits all. A woman who has been married to her husband for sixty years and has no job or income inherits the same as one who was married for a day and owns her own business.

Although the details of the intestate succession formula vary from state to state, there are some common rules that apply to the various state laws. Generally, a court will distribute the assets of the decedent’s estate by first paying off funeral expenses and related costs, and paying the statutory share to the surviving spouse. All states have some degree of protection for a surviving spouse, usually awarding 1/3 or 1/2 of the estate. Following this, the remainder of the estate is divided amongst the remaining living relatives, with descendents (including adopted children) receiving priority over all other blood relatives.

Generally, all children are given equal shares of the estate without regard to their age, sex, or legitimacy. If the decedent leaves no living spouse, children, or grandchildren, the property then goes to the parents, siblings, nieces and nephews, and cousins, in that order. Only relatives are permitted to inherit property under intestate succession- if no relatives can be found, the estate defaults to the state government. 

Another function of the law of intestate succession is to provide for the care of minor children when they are left with no living parents. If both parents (or a single parent) die intestate, the court will appoint a guardian, who may or may not be the person the parent would have chosen. This matter, like property distribution, should be addressed by a will in most cases, but unfortunately there is still a need for the law to fill in the gaps when parents die intestate.

As unpleasant as it may be to think about your own death, taking the time to make a plan for how your property and possessions will be distributed is one of the most important and overlooked responsibilities a person has to their family. If it seems like a difficult task to decide who should get your house, car, pets, personal possessions and even debts when you die, just think about how hard it would be for one of your family members to have to decide for you. The family members of people who die without a will are generally forced to deal with an expensive, time consuming and complicated process to finalize the deceased’s estate. These family members usually end up having to do more work and receive less benefit from the estate due to lawyer fees, court costs, and tax rules. However, if inheritance issues are thought through and planned for ahead of time, your estate can be passed on relatively easily and cheaply.

For centuries, the legal will has been the most common method for people to spell out what should happen to their estate upon their death. Wills come in many shapes and sizes, and if done correctly, may accomplish a wide variety of objectives.  A will may be used to distribute personal property, pay debts, establish trusts, or express wishes about how employees or dependents should be cared for in the future. Often times, the terms of a will are used to express the deeply personal opinions of the deceased, and as such it is important that they are drafted carefully so that those wishes are carried out to the maximum extent possible. 

In one sense, a will is a legal contract like any other, which means that there are rules about how they can be formed, altered, or terminated. Although all states have different formal requirements for the creation of a valid will, there are several rules that apply broadly. Generally, a person must be at least 18 years old and have the mental capacity to understand all of the terms of the will at the time it is executed. The moment of creation is the essential time in questions of capacity, and the fact that a person might fade in and out of lucidity is not necessarily relevant. As long as the person was of sound mind at the time of execution, the will is valid.

In most states, a will must be in writing and signed by the subject, referred to as the testator. In some jurisdictions it is still possible to have a valid oral will, but they are disfavored by the courts and are scrutinized heavily. Typically, statutes regulating oral wills state require that the testator be on his death bed at the time of creation, and even then only personal property can be disposed of, and only non-witnesses can receive property.

For written wills, the signing must typically be witnessed by at least two people who are not beneficiaries. A beneficiary is any person who is chosen to receive property or rights under the terms of the will. It is not necessary that the witnesses read the will first, but they must be advised of the purpose of the ceremony and must sign the will in front of the testator. Hiring an attorney is not required to create a will, but it is recommended for more complicated wills involving large estates, closely held corporations or trust arrangements.

A will remains valid until it is expressly revoked by the testator, or superseded by a new will. A testator can change certain parts of a will without invalidating the remainder by adding an amendment, referred to as a “codicil”. A second option is to simply create a new will, which should contain express language that clearly shows the testator’s intent to revoke the previous will. It is also common for a testator to name a representative to be responsible for carrying out their wishes upon their death. This person is referred to as an executor, and has the responsibility of collecting the testators assets and other property, paying off any remaining debts, tax liabilities or final expenses, filing necessary paperwork to finalize the estate, and distributing property per the terms of the will.