If you die without making a will, a court will distribute your property according to the laws of your state. This process is called “intestate succession” or “intestacy.” Who gets what depends on who your closest relatives are. The most likely recipients are your spouse, your children, your parents, or your siblings. Intestate succession probably won’t determine the fate of all your property. Property that passes outside a will is not subject to intestacy rules. For example, property you put in a living trust passes directly to the beneficiaries you named. The same is true for other property like life insurance or a retirement account — for which you directly named a beneficiary.
While intestate succession will vary from state to state, there’s often a common order of succession that takes place. With some slight variations, the order of succession will be something along the lines of:
Keep in mind, every state has its own rules, so the above may slightly vary. If you have a blended family or other special dynamics, your Estate Plan becomes even more important. Adopted children, step children or an heir who did harmful wrong or criminally caused your death could alter the order and call for special circumstances. And finally, it’s important to note that not all assets are subject to intestate succession laws. Assets in a Trust, those that are payable on death (or TOD) accounts and policies that have direct beneficiaries named could avoid state laws and bypass the probate and/or the intestate process.
Jenny died intestate in Utah. Jenny was divorced and had two adult children. Based on Utah intestate succession laws, her children will inherit everything. However, there is a caveat here: a good rule of thumb is to think about assets Jenny owns in her own name most often these would not pass based on the rules of intestate succession. So, as long as proper beneficiaries were designated, the following would not be passed through per Utah intestate succession laws.
Everything listed above will automatically go to either the beneficiary she named on that account, or the surviving co-owner of a property.
Jenny died intestate in Utah. Bill was married but had no children. According to Utah intestate law, Jenny’s wife would receive everything except the following:
Understanding intestate succession can be somewhat confusing. Knowing the terms that are typically used can help.
Yes, it is possible to sue a will during the probate process, but not everyone can sue to contest a will.
For instance, you cannot challenge your cousin’s will just because you believe his estate would be better off in the hands of another relative. You also cannot contest a will just because you do not believe you received a fair share of the real estate or bank account or some specific piece of personal property.
According to basic probate laws, only “interested persons” may challenge a will, and only for valid legal reasons. The Probate Code identifies “interested persons” as heirs (family members), beneficiaries, creditors, and other parties who have a property right or claim against the estate being administered.
Valid legal reasons to contest a will include:
Who Has Standing to Contest a Will?
While laws vary from state to state, all state laws have requirements that must be met before a will contest can take place. The first requirement is “legal standing.”
The only person who has legal standing to challenge a will and sue for inheritance is someone who is:
Standing is the first requirement to overcome to contest a will. You must either show that you were named in the will (or should have been) or show that you would have received something of value (typically money) if the person had died without a will.
Who is a beneficiary of a will? This means those named in the will. This can include a surviving spouse, children, grandchildren, and other relatives, but it can also include friends, faith communities, universities, charities, and even pets. Beneficiaries have the standing to challenge a will.
Who is a beneficiary of a will? This means those named in the will. This can include a survivin
Heirs are the most commonly named beneficiaries in a will. Heirs are relatives who would inherit even if the decedent had died “intestate” (without a will). Heirs include spouses, children, parents, grandparents, and siblings. Heirs can challenge a will if they were omitted or were left with a disproportionate share in the inheritance. Heirs have the standing to challenge a will because they would have received a share of the estate through the laws of intestate.
g spouse, children, grandchildren, and other relatives, but it can also include friends, faith communities, universities, charities, and even pets. Beneficiaries have the standing to challenge a will.
Minors cannot challenge a will until they have reached the age of majority (typically age 18). This is because minors are not legally able to initiate legal proceedings. A parent or guardian may initiate a lawsuit on their behalf. Any will can be contested if you have standing and valid reasons to challenge it. However, it may not be worth contesting a will. For example, some wills include a “no-contest” clause. A no-contest clause says that if a beneficiary or an heir challenges a will and loses, they will not inherit at all. They are disinherited.
No-contest clauses are not enforced in every state:
Consult with a local estate planning attorney to learn how your state probate courts handle no-
The most obvious consequence of contesting a will is the cost of going to court. Most people will choose to hire a probate litigation attorney to bring a will contest lawsuit to court. Depending on the size of the potential inheritance and the complexity of the case, the expense of a will contest may or may not be cost-effective. Your lawyer can advise you on this. On the other hand, if the estate is large, it may be well worth the time and money to challenge a will in probate court.
If you are a beneficiary of a will and there is a no-contest clause, there is a possibility that if you lose your lawsuit, you could be disinherited. But again, that will depend upon whether your state enforces no-contest clauses. If you are not a beneficiary of the will and you sue for an inheritance, the no-contest clause will not affect your case because you would not have inherited anyway.
There may be personal consequences as well. Loved ones may disagree with your decision to bring a lawsuit. They may have different opinions about the decedent’s (the person who wrote the last will and testament) mental capacity. And, of course, people and institutions with their own financial interests at stake will likely take issue with the legal challenge.
Determining who is entitled to inherit comes down to each state’s “intestacy” laws. Sometimes it’s the state where the decedent lived that determines his heirs. Sometimes it’s the state where his physical property was located at the time of his death, and to really complicate things, sometimes it’s both. When a decedent leaves a will, his heirs may be beneficiaries under its terms or they may not be. Likewise, all beneficiaries are not necessarily heirs. Here’s an example of how an intestate estate one without a will is typically distributed.
Heirs can only inherit from a decedent’s probate estate and yes, probate is still required without a will. The process just follows state law rather than a decedent’s final wishes. The probate estate does not include property that passes directly to a named beneficiary by some other means, such as by deed or a life insurance policy. If a decedent dies owning only real estate titled with someone else with rights of survivorship and a life insurance policy naming his son as beneficiary, his other heirs would receive nothing because he would have no probate estate.
