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Intestate–Defined

Dena Standley | March 06, 2023

Dena Standley
Legal Expert, Paralegal
Dena Standley, BA

Dena Standley is a seasoned paralegal with more than 20 years of experience in legal research and writing, having received a certification as a Legal Assistant/Paralegal from Southern Technical College.

Edited by Hannah Locklear

Hannah Locklear
Editor at SoloSuit
Hannah Locklear, BA

Hannah Locklear is SoloSuit’s Marketing and Impact Manager. With an educational background in Linguistics, Spanish, and International Development from Brigham Young University, Hannah has also worked as a legal support specialist for several years.

It's best to avoid dying intestate and plan out your will.

Summary: In simple terms, intestate means that you pass away without leaving a will behind. Ideally, the assets or property must be greater than any outstanding debt in your name. Notably, a will that only includes part of an estate is also considered intestate because the court must be involved to help distribute whatever was left out.

It is unsettling to realize that dying intestate means the division of your estate rests on legal procedures and not on your wishes. Without a will, the estate often goes to the surviving spouse, the children, extended family, and any descendants the courts can reach. If the courts cannot trace any family, your estate becomes the state's property.

The fear of death is the number reason why people die intestate. Some people even think that it's tempting fate if you write a will. But the sad truth is that avoiding writing a will does not prevent you from facing the inevitable. It ensures your family is well taken care of—according to your preferences. Let's have a deeper look at what intestate entails

What does it mean to say someone died intestate?

Before you put off writing your will, there are certain rules and regulations you should consider that affect the distribution of your assets. For instance, some states do not have well-laid laws explaining the rights of domestic partners, such as same-sex partners. However, some states consider registered domestic partners as spouses.

Most states have laws that prevent people who mistreated you or contributed in any way to your death from receiving an inheritance. Consider the example below.

Example: Darren was involved in a tragic road accident that left him bedridden. His wife Linzy took care of him for ten months but became exhausted and stopped giving him medication. He eventually died after two weeks. Once the court found out about her carelessness, the judge withheld the estate until the criminal court determined whether she was guilty or not for contributing to her spouse's death.

Some state laws assign a personal representative to oversee the division of the estate. Typically, the spouse is the first choice for this role or an adult child. Other states give the responsibility to a court administrator, and they moderate who gets what.

The difference between intestate and testate

Knowing the difference between a person who left a will (testate) and a person who did not (intestate) can help you understand why dying intestate typically causes more heartache to the bereaved family. The table below shows a detailed comparison of the two terms.

Intestate vs Testate
Testate Intestate
Died with a will Died without a valid will
Petition for Probate of Will is filed if the will didn't name an executor or the named executor refuses the task Petition for Letters of Administration is filed for the court to assin an administrator to act as executor
The person to foresee the estate division is called an "Executor of Will" The person to foresee the estate division is called an "Administrator of the Estate"
The distributees (people who receive the estate) are called "Beneficiaries" The distributees (people to receive the estate) are called "Heirs" or "Heirs-at-Law"
Distributees appear in the will Distributees are decided by the state statute
Beneficiaries receives assets as listed in the will Heirs receive a portion of the assets, according to the number of family members involved

Notably, courts usually divide your assets and property after paying off all debts. For instance, if you have a mortgage, they use all available funds, including life insurance, bank account balances, and securities, to clear the mortgage before distributing whatever remains.

The best move would be to stay up to date with your debt payments to avoid your loved ones receiving less than what you would have desired. Consequently, you can make a settlement offer to your creditors if you have delayed payments for a few months. Use SoloSuit’s SoloSettle to make an offer and pay less than you originally owe. Settling your debts before any unexpected accidents or illnesses will benefit your loved ones.

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How to avoid dying intestate

The only viable way to avoid dying intestate is to have an Estate Plan that factors in a will. You can use free or paid online estate planning documents to create one. If you have a relatively complex estate, you may need to hire an Estate Planning attorney. Undoubtedly, having a will ensures your wishes are known and respected.

On another note, do you have pending debt, and the creditors are calling? Use SoloSuit to send a Debt Validation Letter and stop their calls. Our other documents can help you respond to a lawsuit and force a lawsuit out of court.

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