When Do Intestacy Laws Apply?

We have already discussed the most obvious answer to this question. Intestacy laws apply to a decedent’s estate when the decedent dies without a will. Assuming there are assets left by the decedent that would be part of the probate estate, the intestacy laws in the decedent’s state would apply and the assets would be distributed accordingly. However, there are two other situations in which intestacy laws apply that may not be as obvious.

First, if a valid will does not detail the division of all the probate estate’s assets, intestacy laws apply to govern the distribution of the remaining assets. This situation is unfortunately common when a testator decides to draft his or her own will. Without an attorney’s help, the will may be incomplete or unclear regarding certain assets, necessitating application of intestacy laws and potentially triggering probate disputes among family members over the shortcomings of the testator’s will.

Secondly, it is possible that a valid will invokes intestacy laws. Intestacy laws are designed to carry out what the drafters consider to be the most probable desire of the average intestate decedent. Accordingly, it is possible that a testator’s intent is to devise his estate just as the intestacy laws would dictate. Even if only partly, a testator can invoke the intestacy laws to distribute part of the probate estate’s assets.


Image by: Bo Insogna