Intestate probate occurs when the decedent dies without a will or a valid will. The estate enters into probate, and the laws of the jurisdiction determine how the personal and real property gets distributed to heirs. Individuals who want to control how their assets are disbursed are often encouraged to draft a will or seek the help of an estate planning attorney. Intestate law is often based on the behaviors of the average resident in regard to the transfer of property, which may not reflect the desires of the decedent. For that reason, many estate planners often help clients to avoid probate altogether by using alternative legal instruments, such as trusts.
When a decedent dies without a will, a judge in probate court will appoint an executor of the estate. Part of the intestate probate proceedings requires the executor to notify creditors and all relatives of the death and that the matter is in probate. According to many local laws, taxes and the creditors are paid first, and then the heirs receive the balance of the estate. When there is no will, such as in cases when the decedent dies intestate, the judge must distribute the property in accordance with intestate laws. Some properties are exempt from probate even when there is no will if the estate is valued below a state required amount.
The allocation of property as prescribed in many intestate probate laws is often determined by the relationship of the heir to the decedent. For example, a surviving spouse often receives the net estate, which is what’s left after taxes, debts, and legal expenses are paid in their entirety or a significant portion of them. A distant relative is likely to receive little or any of the property if there are other heirs, such as children. Parents of the decedent are also heirs and often receive all of the estate if there is no surviving spouse or children. Intestate laws often prescribe what percent of the estate goes to what heirs.
An invalid will may result in an intestate probate proceeding. In most jurisdictions, a will must be in writing and signed by the decedent to be valid. There are often other legal requirements, such as the signature of at least two witnesses in the presence of a notary public. If the will is not valid in the location where the decedent died or where the will was executed, it will be treated as though there was no will.
