Intestacy : What to Do When a Loved One Passes Away Without a Will | The Inheritance Recovery Attorneys, LLP

Usually, our articles focus on ways to challenge a will, but what happens if someone passes away before he or she gets a chance to make a will?

  • Who inherits what?
  • How does the law decide who is in charge of distributing assets?
  • Who can dispute an inheritance?
  • And what can you do if you would like to challenge an inheritance ruling?


Intestate definition

When someone dies without leaving a legal will, he or she has died “intestate.”

When a person dies in intestacy, the responsibility of determining the distributions of their assets falls to probate court. Additionally, an intestacy can come about if the will of the deceased was found to be invalid, through means of fraud or a legal error.


What happens to an estate when there is no will?

When there is no will present or the deceased did not name an executor of their estate, then the state will step in and provide a list of possible executors. The executor will then be chosen during probate court proceedings.

The surviving spouse or registered domestic partner is usually the court’s first choice for executor. If there is no spouse, then adult children are the court’s next likely choice, followed by other family members.

Intestacy rules vary significantly depending on the state. Some states treat domestic partners differently, especially same-sex partners. In some states (e.g., California and Oregon) domestic partners have the same legal rights to property as a spouse, but that is not true everywhere.


The Rules of Intestate Succession

Most states have rules that prevent parties who treated the deceased poorly from benefiting from their passing. If someone was responsible for the death of the deceased or did not pay child support for a child that died, then they cannot profit from an intestacy.

Usually, after the deceased debts have been paid, probate courts attempt to divide up real estate holdings, life insurance proceeds, securities, bank accounts, and personal property to deserving parties.


Line of succession

If a person dies in intestacy with more assets than debts, then the line of secession and the distribution of holdings begins.

Spouse (who qualifies as a surviving spouse)

A surviving spouse will be the first to inherit from the estate of the deceased if there is no will. To qualify as a surviving spouse, a person must have been legally married to the deceased at the time of death. Most of the time, it is clear who is married and who isn’t, but not always.

  • Common-law marriage. Some states allow common-law marriages (e.g., Colorado and Alabama). A common-law marriage occurs when a man and a woman who never went through a marriage ceremony are considered legally married. Generally, to create a common law marriage, a couple must live together, intended to be married, and present themselves to the world as married.
  • Same-sex marriage. Couples who marry and reside in a state that recognizes marriage equality shouldn’t have a problem if intestacy occurs. Unfortunately, if one spouse dies in a state that doesn’t recognize marriage equality, then the courts will have to decide the issue.
  • Pending divorce or legal separation. If the couple separated before the death of one of the spouses, or if one person has begun the divorce proceedings, a judge may have to make a ruling as to whether or not the surviving member of the couple is considered a surviving spouse.


Surviving children are the next party to be taken into consideration in intestacy proceedings. “Children” can have different categorizations under the law depending on their relationship to a deceased parent.

  • Adopted children. All states recognize the rights of legally adopted children to inherit from a parent, in the absence of a will. If another party legally adopts a child, he/she can no longer inherit from their birth parents under intestate laws, and the biological parent of a child who has been adopted by another party can no longer inherit from the child.
  • Foster Children. Foster children do not typically have the same inheritance chances as biological or adopted children.
  • Children adopted by a stepparent. Depending on the state, a child who is adopted by a stepparent can still inherit from the biological parents.
  • Children born after the parent’s death. A child that is conceived before, but born after a parent’s death have the same rights as children born before a parents death.
  • Children born outside of marriage. A child born to unmarried parents always inherits from the birth mother, unless an unrelated family adopts the child. In most cases, the child must show appropriate DNA evidence to inherit from the father.


Taking Care of Minor Children

When parents with young children make a will, they typically name someone to serve as the personal guardian of their children. However, if both parents die without naming a guardian for their children, the court will appoint a guardian.

Before determining a guardian, the judge will gather as much information as possible about the child or children, their family circumstances, and the deceased parents’ wishes and try to make the right decision. In these matters, a judge’s priority is the best interest of the children.

Brothers and Sisters

Intestate succession laws usually give equal regard to full and half-siblings. In some cases, half-siblings who were adopted by another family can be included in this grouping.

Survivorship Requirements

In most cases, an heir must outlive a benefactor to be able to inherit from their estate. The amount of time an heir must survive a benefactor to inherit from them can vary state by state.

Some states require an heir to live 120 hours longer than the deceased to inherit from their estate, while other states only require an heir to live a second longer than the deceased.

Most states have adopted the Uniform Simultaneous Death Act to handle cases when two parties pass away closely to one another (e.g., in a car accident or natural disaster).

The act states that if two or more people pass away simultaneously due to an accident within a 120-hour survival period, with no will, their assets are to be given to their relatives rather than from one estate to another.

The Uniform Simultaneous Death Act is used to avoid double administrative costs.

If an Heir has Died

If an heir who would have inherited from an intestate estate dies before they get the chance to receive a part of the estate, his or her offspring could have a chance of being awarded their inheritance.

Figuring out if the child of an heir can inherit in the place of their parent can be tricky, but must be done if the circumstances call for it. Typically, probate courts will investigate the matter on a case by case basis.

Rights of a Deceased Heir’s Descendants

If one of a group of heirs has died, his or her children inherit their parent’s share. In other words, they take the place of the parent. According to this concept (called the “right of representation”), children (or, in some cases, grandchildren) stand in the place of their deceased parent when it comes to inheritance.


Talk to your loved ones about creating a will

The best way to prevent difficult intestate circumstances is to have a frank discussion with your loved ones about what they would like done with their estate when they pass on and urging them to have a will drafted.

Discussing inheritance matters now could save your family from having to deal with more difficult issues in the future. If you need help creating a will, you should consult an attorney, or at the very least, use an online will creation tool.


Disputing an Intestacy Ruling

The fact that intestate laws don’t take into account cohabitation and have strict legal rules around who can inherit from the deceased, can sometimes lead to an unjust distribution of property.

It is best to treat matters of contesting intestacy rulings the same way you would handle challenging a will.

Read on to see the steps you should take to challenge an intestacy ruling. If you have any questions, please contact us.


Act Fast

Probate courts will try to settle an intestate estate quickly. If you need to challenge an intestate ruling, you only have a fixed amount of time to do so.

Only a limited amount of time is given to file an intestate contest so that the payment of final expenses and transfer of property to heirs can be expedited. Otherwise, an estate might never be completely distributed for fear that a contest may be filed in the future. If you wait too long to file a contest, you will be time-barred from attempting to recover your full inheritance.

We suggest seeking legal advice from an attorney with inheritance dispute experience as quickly as possible. The sooner you speak with an attorney, the sooner you can begin to weigh your options.


Hire an Attorney

An attorney will be able to guide you through the probate process by helping you formulate a strategy and gather evidence to support your claim.

An experienced probate attorney will be able to help you do the following:

  • Investigate whether factual grounds exist to challenge an intestacy ruling.
  • Help guide you through the complicated legal process and give you an idea of what to expect.
  • Properly petition the court with your concerns and issues.
  • Provide adequate legal notice to all interested parties.
  • Develop legal strategies and arguments to the court based on state probate, trust, and estate laws and present those arguments to the court in written and oral submissions.
  • Identify and locate property, including complicated financial assets.
  • Take legal steps (including filing requests for injunctions) to prevent other parties from dissipating, damaging, hiding, or otherwise harming your property.

We understand that the cost of retaining a lawyer is a concern, that’s why offer contingency pricing on intestate contest matters. This means, if we represent you, we will collect no legal fee unless or until we win on your behalf.


Gather Evidence

When probate courts are considering how to distribute an intestate estate, they will look for evidence that reflects the wishes of the deceased.

Anything you can find that shows how your loved one wanted their estate divided will be helpful to your case. Look at old letters, text messages, and emails to find written confirmation of the assets your loved one wanted you to have.

Your lawyer will be able to help you track down depositions that will help you build your case. These will include written and verbal evidence given by other parties that will help illustrate to the court your relationship to the deceased.


Batten down the hatches

More often than not, things can be messy when people disagree about how to distribute an inheritance. In some circumstances there can be lies, misrepresentations, or false accusations.

You need to prepare yourself for the mental strain of legal proceedings. Ask yourself if your potential inheritance will be worth all the hardships you will have to undertake.



Ultimately, challenging an intestate ruling is about ensuring that the true intentions of the deceased come to light.

We hope the information you found in this article will help you do just that. If you have any questions about contesting an intestate ruling or would like to meet with an experienced inheritance recovery attorney to discuss how we can help you get the compensation you deserve, don’t hesitate to reach out.

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