Intestacy is the legal term for dying without having a valid Will in place. You can die “intestate” for two reasons:
- You didn’t make a Will while you were alive and had the mental capacity to do so; or
- You made a Will, but it wasn’t valid. This can happen when your Will is not properly signed or witnessed, or if you made your Will without the legal capacity to do so – for instance, if you didn’t have the mental capacity to understand what you were doing.
How Intestacy Works
So, what happens if you die intestate?
- The state has special laws, called “intestacy statutes” that determine how your property is distributed. Generally, your property goes to your closest relatives, such as your spouse and children.
- If you have minor children, and they’re left without a living parent, then a judge decides who will serve as your children’s guardian. The guardian takes care of your children and manages their finances for them until they reach legal adulthood. Generally, one or more family members will ask to be named guardian, and it’s the judge’s job to determine who is most fit for the job.
Reasons to Avoid Intestacy
For anyone who has more than the simplest of situations, estate planning is essential. Here are just a few examples of why dying intestate can be the last thing you need:
- Unmarried Couples. If you’re in a same-sex relationship, or even in a heterosexual relationship and you’re not married to your partner, then dying without an estate plan could mean that your partner gets nothing. Instead, your property would go to your blood relatives.
- Parents with Young Children. As discussed above, if you pass away leaving your children without a parent, your kids’ fate will be decided by a judge who doesn’t know you or your family. So, your kids could end up with someone you never would have chosen.
- Separated From a Spouse. What if you and your spouse are separated, but not divorced? Without an estate plan that says otherwise, at least part of your property will go to your spouse – who just might be the last person you want to receive it.
- Children from a Previous Marriage. If you’re married but have children from a prior relationship, your spouse could get the bulk of your estate under the intestacy statutes. If you want your children to get a larger share, you’ll need an estate plan.