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What does “dying intestate” mean?

On Behalf of | Feb 14, 2024 | Probate & Estate Planning

When you die having executed a valid Last Will and Testament, that is called dying “testate.”

When you die without having executed a valid will, you are considered to be “intestate.”

Major differences are that in a will you can determine who will inherit your property, and who will administer your estate.  When you die intestate, state law determines who your heirs are and what they will inherit, and a court decides who will administer your estate.

There are some significant exceptions to this scenario.  If you own property jointly with another person, that person will inherit your interest.  If you have accounts which can include named beneficiaries, such as retirement accounts and various other investments, you may have exercised our option to name who will inherit such accounts by designating that in writing as a term of the account.  If you have set up an inter vivos trust (meaning a trust which takes effect during your lifetime), then you have likely named successors to your interest in any property you have transferred to that trust during your lifetime.

For all other property, not jointly owned, not having named beneficiaries designated, and not transferred to a trust, the law of the state in which you reside will control.  Generally, your heirs will be your spouse and children.  Be aware, your spouse may not be entitled to all of your estate, and is not in the State of Rhode Island, if you die without a will leaving it to him or her.  In fact, in Rhode Island a spouse is entitled to a life estate in your real estate, and a portion of your remaining property.  If you have no spouse,  your children are likely to be your heirs.  If you have neither spouse not children, your parents are likely to be your heirs.  With none of these survivors, the closest “heirs” designated by state law will inherit your property.

This leaves out any important domestic partner, caretaker, friends and charitable concerns which may be important to you.

Additionally, without a will, you lose the opportunity to name a guardian to care for minor children, as well as a trustee to manage assets which may be inherited by minor children, young adults, or disabled heirs at law, who may inherit from you.

It is advisable to have an attorney prepare a will, in order to address any situations you haven’t otherwise prepared for or anticipated.  Consultation with an attorney can also help with tax minimization planning if needed.