Teaching Tip 1 (Related to Article 1— “The Great Wealth Transfer”): “Intestate Succession Laws by State”

For the rules regarding property distribution when someone dies without leaving a will (known as “intestate succession”), please see the full article, Intestate Succession Laws by State, on Find Law.

According to the article, every state and the District of Columbia has intestacy laws determining who inherits property when someone dies without a will or trust. Intestate succession laws are similar across states, but there can also be meaningful differences. For example, intestate succession works differently with separate property versus community property and the share of the deceased person’s estate that some people have a right to inherit.

What Is Intestate Succession?

The laws of intestate succession come into play when a person dies without a valid will or trust. The deceased person’s property passes to certain family members who have a right to inherit according to the laws of the state in which the decedent was domiciled at the time of death. That is, the place they called home.

They may have had property in another state, but their main home is where the probate court will open a case. A probate court in any other state(s) will have authority over only the personal property in that state.

Intestate succession statutes identify and prioritize heirs so that the decedent’s property can be distributed fairly, legally, and in an organized manner.

Intestate Succession Does Not Apply to All Property

Not all property passes to heirs through the probate process. Some assets are not part of the decedent’s estate. These include:

(1) Property held in a living trust or an irrevocable trust

(2) Life insurance policies that go to a named beneficiary

(3) Payable-on-death (POD) bank accounts

(4) Retirement accounts that go to a named beneficiary

An account owner can easily name a designated beneficiary by contacting the financial institution. Some real property assets pass to loved ones through title or deed. These include real estate such as a home owned as tenants in common or in joint tenancy with right of survivorship.

The property may be inherited by:

  • A surviving spouse
  • A spouse, plus biological children
  • A spouse plus biological children and adopted children of the decedent
  • Other family members

Different states have different lists of property and assets for which intestate succession applies.

Property Distribution by Intestate Succession

Generally, heirs are grouped into classes. The classes determine the order in which the property will transfer to heirs. The share of the property depends on the closeness of the legal relationship between the heir and the decedent. For example, one class may receive one-third, one-half, or even all of an estate. The classes of heirs can be as follows:

(1)  The Decedent’s Surviving Spouse: Some states protect inheritance rights. Some heirs cannot be totally disinherited.

(2)  Biological Children and Adopted Children: A trustee or guardian manages an inheritance for minor children. Stepchildren are not part of intestate succession, regardless of the relationship’s proximity. For a stepchild to inherit, the decedent must name them in their will or trust.

(3)  Grandchildren: The children of a deceased child. For example, if the decedent had three adult children when they died and one of those children was dead, that child’s children would split, in equal shares, the share their parent would have inherited.

(4)  Surviving Parents

(5)  Siblings of the Decedent

(6)  Descendants of Decedent’s Siblings: Nieces and nephews

(7)  Descendants of Grandparents: Aunts and uncles.

If none of the individuals above exist, the decedent’s entire estate may transfer to the state. This is called escheat.

State Laws on Intestate Succession

All 50 states and the District of Columbia have probate and estate laws. 

Please see the above-referenced website for links and citations to intestate succession laws for each state and the District of Columbia.