Intestacy Guide: When There Is No Will
Dying intestate means passing away without a valid Will. In these cases, the deceased’s assets are distributed according to state laws of succession, which prioritize the closest living relatives (spouse, children, then parents and siblings). Instead of an Executor, the court appoints an Administrator to manage the estate, pay debts, and oversee the probate process. Intestate probate is often more time-consuming and prone to disputes than estates with a Will. Many heirs in this situation utilize an inheritance advance to manage immediate financial needs while the court determines the legal distribution of the estate.
Key Implications of Intestacy:
- Succession Hierarchy: Every state has a rigid hierarchy (e.g., California’s Intestate Succession vs. Florida’s).
- Administrator Appointment: Usually a spouse or adult child must petition the court to lead the estate.
- Personal Property Risks: Sentimentality is not recognized; jewelry and furniture are divided mathematically rather than by intent.
- Tax Liability: The Administrator remains responsible for filing final income and estate tax returns.
Losing a loved one is a stressful experience that becomes even more complex when they die “intestate”—the legal term for dying without a Will. Without a written roadmap of the deceased’s wishes, the legal system takes over, following a strict set of rules that may or may not align with what your loved one intended.
Asset Distribution by State Law
When there is no Will, you lose the ability to choose who inherits what. Instead, the laws of the state where the deceased lived dictate the outcome. Most states follow a similar priority list: the surviving spouse and children inherit first, followed by grandchildren, parents, and then siblings. This rigid structure often causes tension, especially in blended families or when the deceased had long-term partners who were not legally married.
The Role of the Court-Appointed Administrator
Since no Executor was named in a Will, the probate court must appoint an Administrator. This person fulfills the same duties as an Executor: inventorying assets, paying off creditors, and distributing the remaining balance. If multiple family members want this role, it can lead to a lengthy and expensive legal battle before the probate process even officially begins.
The Challenge of Personal Property
Financial assets like bank accounts are easy to divide mathematically. Personal property—jewelry, family heirlooms, and furniture—is much harder. Because there is no Will to specify who gets “Grandma’s ring,” these items often become the spark for family disputes. Administrators are often forced to sell these items and divide the cash proceeds, which can be devastating for heirs who valued the sentimental items themselves.
Why Intestate Probate Takes Longer
Intestate cases generally take longer than testate (with a Will) cases because the court must verify every potential heir. This “heirship” phase can add months to the process. If you are an heir waiting for an intestate estate to settle, you could be looking at 18 to 24 months of waiting.
During this time, life doesn’t stop. Bills, taxes, and funeral costs continue to mount. An inheritance advance provides a way to access your legal share of the estate today. Because we review the estate’s total value and the state’s succession laws, we can provide you with cash now, taking the pressure off while the court works through the legal complexities of intestacy.
Frequently Asked Questions
Not necessarily. In many states, if there are surviving children, the spouse and children split the estate. The exact percentage depends on the state’s specific “community property” or “separate property” laws.
Usually, the surviving spouse has the first right to apply. If they cannot or will not serve, adult children are next in line. If no family member is available, the court may appoint a professional public administrator.
Be proactive. Contact the probate court in the county where the deceased lived to ensure you are listed as a legal heir. Consult with an attorney to understand your rights under your state’s specific succession laws.