Simply put,
intestate succession is the manner by which property passes when an
individual dies without a will. To describe it another way, it is
the will the that the state legislature writes for you if you do not
write your own! Although each state varies somewhat in how this is
done, the following is a generic guide or idea of what you could
expect if you die intestate:
Distribution: In many states, a surviving spouse receives the
largest share of a decedent's estate if there is no will. In some
cases the spouse will receive the entire estate. Children of the
decedent and the decedent's parents and other kin may also receive a
portion of the estate.
Role of the State: Contrary to popular belief, many states do
not simply receive funds from the estates of individuals who die
without a will. Where no family member can be found the estate is
turned over to the administrator of unclaimed property. The State
will then use the money, but if a relative is later found or comes
forward, the State returns the money with interest. Please check
your own State's policy on this procedure to be certain how it works
where you live.
Fiduciary: An administrator is appointed by the County
Surrogate to handle the affairs of the estate. A surviving spouse
and then children have the first right to act.
Impact on the Estate:
This type of planning, or non-planning,
can have negative consequences on the estate. Since there is no tax
planning there may be estate and inheritance taxes due and owing
which might otherwise be avoided. It is also likely in many cases
that a bond will be required for the administrator causing a further
expense to the estate. A bond is basically insurance that the
fiduciary will act properly. In addition, if you have minor children
and die without a will, State law will determine who has the right
to guardianship of your children, including investment of monies
coming into their hands. Any monies coming to the children are then
turned over to them at the age of 18.