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.