Intestate Succession

Simply put, intestate succession is the manner by which property passes when an individual dies without a will. To describe it another way, it is the will the that the state legislature writes for you if you do not write your own! Although each state varies somewhat in how this is done, the following is a generic guide or idea of what you could expect if you die intestate:

Distribution: In many states, a surviving spouse receives the largest share of a decedent's estate if there is no will. In some cases the spouse will receive the entire estate. Children of the decedent and the decedent's parents and other kin may also receive a portion of the estate.

Role of the State: Contrary to popular belief, many states do not simply receive funds from the estates of individuals who die without a will. Where no family member can be found the estate is turned over to the administrator of unclaimed property. The State will then use the money, but if a relative is later found or comes forward, the State returns the money with interest. Please check your own State's policy on this procedure to be certain how it works where you live.

Fiduciary: An administrator is appointed by the County Surrogate to handle the affairs of the estate. A surviving spouse and then children have the first right to act.

Impact on the Estate:

This type of planning, or non-planning, can have negative consequences on the estate. Since there is no tax planning there may be estate and inheritance taxes due and owing which might otherwise be avoided. It is also likely in many cases that a bond will be required for the administrator causing a further expense to the estate. A bond is basically insurance that the fiduciary will act properly. In addition, if you have minor children and die without a will, State law will determine who has the right to guardianship of your children, including investment of monies coming into their hands. Any monies coming to the children are then turned over to them at the age of 18.