Intestate Succession—What It Is, And How Best To Avoid It

Posted on: 11 April 2017

If someone dies without a will, then the court must figure out how to distribute the property of the deceased. This practice, known as intestate succession, can lead to many problems for those left behind. Here's a little on how intestate succession works, and what you can do to prevent it.

Who Stands to Inherit When No Will Exists

State laws govern intestate succession. Each state has a list of people who can inherit assets. From that list, the court will choose the executor of the estate. The executor will need to locate all assets, manage them, pay debts, and distribute property.

Intestate succession lists typically list immediate family first. Usually, the order of priority will look something like

  • spouse or registered domestic partner;
  • children, starting from the oldest;
  • then closest blood relatives.

Often, that order of succession can work well for most. However, different lifestyle situations can cause issues. For example, consider if a married person separated from their spouse, but didn't legally end the marriage. Then the spouse would inherit the estate, when the deceased may not have wanted that to happen.

If someone has children from multiple marriages, then someone may dispute how the distribution worked. Another example can come with common-law marriages. Some states may give someone the title of "spouse" due to common-law marriage rules. That person can inherit, even if the deceased never intended for them to do so. All of this can lead the succession into a lengthy probate process.

Some Things Are Exempt from Intestate Succession

Another source of possible confusion can come from certain assets that aren't subject to probate or intestate succession. Typically, anything that requires someone to explicitly name a beneficiary doesn't need court intervention. This can include things like life insurance, retirement plans, and securities. In addition, anything designated "payable on death," or "transfer on death," will automatically go to the named beneficiary.

An intestate succession can still become problematic for these assets if the executor cannot find the documents with the named beneficiaries. Other than the above-mentioned type of accounts, the best way to avoid intestate succession issues is to have a will.

Working with a probate lawyer to help plan the estate will help to avoid any confusion for those who stand to inherit that estate. It will also ensure that everyone involved knows the will of the deceased. If an estate plan was never developed, then a probate lawyer can also help an executor deal with the task of properly distributing the assets of the deceased.