Editor's Note: This is Part 3 of our series on the Probate Process. To learn more, start with Part 1: The Will and Part 2: Ways to Contest a Will. 

What happens when you don't make a plan for your estate?

In our previous blog, Part I – The Probate Process: The Will, we stressed the importance of having a will to make sure your assets are distributed how you want them to be in the event of your death. Because having a will, especially a well-drafted will, is so very important, we are dedicating an entire blog to explaining what will happen if you don't have a will or any other plan in place for your estate, such as a trust.

When Intestate Succession May Occur

The following are some situations in which intestacy laws may apply and dictate where your property goes upon your death:

1. You do not have a will, a trust, or any kind of non-probate device set up for how your estate is to be distributed.
2. Your will is not valid. Maybe it's a holographic will in a jurisdiction that does not allow holographic wills. Or maybe you did not have the right number of witnesses sign the will.
3. An interested person contests your will and either the entire will or parts of the will are declared invalid. For the property in the parts that are declared invalid, intestacy laws will usually apply.

Because intestacy laws not only apply when there is no will at all, but also when a will may be both poorly written and/or poorly executed so as to make it invalid, it is important to consult an attorney to make sure that your will is eligible to be admitted for probate.

Who Usually Takes Under Intestate Succession

Although intestate succession laws vary from state to state, most intestacy laws will favor family members over non-family members. If you want some property to go to a friend or maybe even a non-profit, it's best to execute a valid will, rather than rely on intestacy laws.

Most intestacy laws will favor the surviving spouse over all others, including the decedent's issue (e.g., the decedent's children and grandchildren), the decedent's parents, and the decedent's other relatives such as aunts, uncles, and cousins. If there is no surviving spouse, then the decedent's issue are usually favored over all others. If there is a surviving spouse and issue, the estate is usually split, whether equally or unequally, among the spouse and the issue. Lastly, if there is no surviving spouse and no issue, then a decedent's parents will likely inherit the estate over the decedent's aunts, uncles, and cousins.

Some states even have laws that are often referred to as “laughing heir provisions” that prevent relatives who are too distantly related to the decedent from receiving any part of the decedent's estate through intestate succession.

Because a surviving spouse is favored by intestate succession laws, it is important that a decedent with a former spouse had a proper and valid divorce if he or she does not want that former spouse to receive any part of the estate.

For example, even if you have been separated for 30 years and attempted to exclude your spouse from your will, only a formal divorce or a validly executed will or non-probate device can prevent your separated spouse from inheriting from your estate.  If no divorce was ever finalized, then the spouse likely will still have a claim for to some of the estate's assets under what is often termed a “right of election.”

To that end, even if you specified who you desired to inherit your property upon your death, a Court may intervene and distribute a portion of your estate assets to your spouse instead.  For information regarding terminating a common law marriage, check out this blog: Can You Be Married Without A Wedding?

If the decedent has absolutely no family members at all or maybe only has very distant family members that fall under the “laughing heir” provisions, then it is likely that the decedent's estate will escheat to the state, meaning that the decedent's estate will just go to the state.

Each state has its own method of distributing a decedent's estate if there is no valid will. Because intestate succession laws vary among each state and because intestacy laws may not align with a decedent's wishes regarding his or her estate, it is important to consult an attorney familiar with the probate process, such as those at Patriots Law Group, to help you draft a valid will.

DISCLAIMER:  The information above is for informational purposes only and is not intended to serve as legal advice for any particular situation.  No attorney-client relationship is intended or created by this information and may not be relied upon based on the above-statements.  Each individual situation is different and therefore a consultation is necessary before any advice can be relied upon as appropriate and accurate for your situation. Please call Patriots Law Group at 301-952-9000 to set up a consultation if you wish to obtain specific legal advice concerning your situation.