Intestate

About 40 percent of all Americans die without leaving a will. And when a person dies without creating a legal will delineating the distribution of his or her estate upon death, that person is said to have died "intestate."

When this happens, a probate court will impose a "will substitute" that specifies how the decedent's estate is to be administered and who is entitled to inherit its assets.

Like most other probate statutes and procedures, laws of intestacy vary from jurisdiction to jurisdiction. However, they will all generally address the following issues:

Identifying a priority list of persons entitled to appointment by the court as an administrator of the estate
Stipulating the powers granted to the administrator and the circumstances under which he or she must be bonded
Identifying a priority list of persons entitled to appointment by the court as guardian(s) for the decedent's orphaned minor children, if any
Identifying the "heirs at law" – those persons most likely entitled to inherit the decedent's probate assets

In order of priority for finding an administrator of the estate are:

A surviving spouse or his or her nominee
Other heirs at law by degree of kinship or their nominee
If no member of the decedent's family is willing to serve, any creditor of the deceased may petition the court for appointment

Once chosen by the court, the administrator must adhere to the intestacy laws of the state in which the decedent lived.

In addition, the responsibilities of an intestate estate administrator are similar to those of an executor of an estate where there is a valid will: handling creditors' claims, paying taxes and administrative expenses, and distributing any assets to entitled persons.

Intestate Succession Under the Uniform Probate Code

Although the Uniform Probate Code (UPC) is only applicable in its entirety in 17 states, many of the remaining jurisdictions adhere to some of its provisions, including those that stipulate how the assets of an intestate estate are to be distributed among the heirs at law. The UPC divides the decedent's relatives into the following classes in order of decreasing priority:

The deceased's surviving spouse
The deceased's children and grandchildren
The deceased's parents
The deceased's parents' children
The deceased's grandparents
The deceased's grandparents' children

If none of these classes of heirs at law has a qualified member at the time of death, the UPC specifies that the decedent's estate passes into a state's treasury - a legal procedure known as "escheat." Intestacy laws make no provision for any unmarried cohabitants, domestic partners or friends to inherit any assets of an intestate estate.

Most State Intestacy Laws Favor the Surviving Spouse and Children

The UPC, as well as the intestacy laws in most states, tends to be very generous to a surviving spouse and any surviving children. In fact, the suggested minimum for a spouse's share of an intestate estate where there are surviving children is $150,000 plus half of any remaining balance, with the children inheriting the other half.

In cases where descendants exist, $200,000 plus three-fourths of any remaining balance goes to the surviving spouse, which is likely to exhaust the majority of most estates' probate assets.

While states have adopted different formulas for calculating these estate amounts, the specified share for a surviving spouse generally recognizes his or her needs and tends to be fairly consistent with what is usually provided in the wills of most married couples.

In addition, most jurisdictions have laws that deal specifically with the protection of the inheritance rights of any children born out of wedlock. As long as paternity or maternity can be established, illegitimate children are entitled to inherit assets from an intestate estate.