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Testate vs. Intestate: What's The Difference? 

Troy Werner and his family

Written by Troy Werner

Troy Werner has been an indispensable asset to The Werner Law Firm since joining in 2009, providing exceptional legal service to its clients.

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POSTED ON: October 22, 2021

When a person passes away, they leave behind assets, properties, and accounts that must be distributed among the living. Under most circumstances, it's the decedent's heirs and beneficiaries that receive the estate. But in what order, and what amounts? If a person left behind legal instructions on the matters of their estate, they died testate. If […]

When a person passes away, they leave behind assets, properties, and accounts that must be distributed among the living. Under most circumstances, it's the decedent's heirs and beneficiaries that receive the estate. But in what order, and what amounts? If a person left behind legal instructions on the matters of their estate, they died testate. If they did not, they died The Dire Legal Consequences of Dying Intestate.

The simple distinction between testate vs. intestate is that one left a testament, and the other did not. You can still leave behind a few words meant to act as a will, but if they cannot be legally recognized, your estate may still be distributed as though no will existed. A will must be valid and probated to become legitimate, at which point it will be executed under the supervision of a probate court and a judge.

But without a will, it's the state's laws on intestacy that decide how an estate will be distributed. Both testate and intestate estates must pass through the probate process.

Understanding the Basics of Probate and Intestate Succession

The probate process is the legal process of legitimizing (or probating) a will and distributing an estate. In the absence of a will, the state's instructions will guide the distribution of the estate. 

Probate begins after a notarized copy of a decedent's death certificate is filed alongside a petition to the courts of the decedent's county of residence. 

This petition leads to the beginning of the probate process, wherein the court names an administrator to the estate, whose job it becomes to deal with the decedent's final expenses and debtsnotify creditorsmanage each item of the estateacquire a professional valuation of the estatenotify and talk to the beneficiaries, and ultimately distribute what was left behind, among other tasks. 

Usually, they will work together with probate attorneys to tackle legal challenges, seek advice, and minimize the length of the process. 

The probate process is also where probate disputes take place. When probate begins, and a last will and testament is provided, relatives can bring forth a more recent testament or argue that the given testament is invalid due to evidence of abuse, coercion, or fraud. 

In the absence of a will, the court will still name an administrator to oversee the distribution of the estate as per intestate succession. While it differs from state to state, intestate succession generally shows that the estate is distributed among the next of kin

Surviving spouses generally receive the lion's share of the estate, while the rest is distributed among the decedent's surviving children. 

In some states, adopted children cannot inherit. Unmarried partners cannot inherit, and domestic partnerships only provide inheritance in certain states. 

If an heir is dead, their next of kin is in line for the distribution most of the time. If none exist, their share will be split among the other heirs. If there are no spouses or children to inherit, most states distribute an estate among siblings and parents, then grandparents, uncles, and so on. In the rare case that no surviving relatives exist, the contents of an estate may be escheated by the stateThis does not happen frequently. 

Differences in intestate succession between states can be minute yet are critically important. You never know what circumstances your family and loved ones may be facing when you die. A comprehensive estate plan can mitigate the stress and confusion of estates and probate after death. 

Testate vs. Intestate: Can One Die Intestate with a Trust? 

Trusts are often suggested as an alternative means to distribute property after death because they allow all assets within them to bypass probate while providing much greater flexibility and control than a will. 

But if you create a trust and have no will, anything left under your ownership upon death will be distributed as per state law. 

A trust is not a document that explains who gets what. It is an entity that holds assets and property under the management of a trustee for a designated beneficiary (or multiple beneficiaries). Unlike wills, which help guide the probate process, trusts are their own thing. 

They can exist for years after a grantor's death, managing the assets placed within them for decades. Trustees can manage a grantor's assets, investing them conservatively and paying out income to the trust's beneficiaries.

But unless everything you own is placed into a living trust shortly before you die, there may still be assets, accounts, and properties under your name. A will can help ensure that these are also distributed as you see fit, rather than as per state law. 

How Wills and Trusts Work Together

Wills and trusts are often juxtaposed as two sides of the same estate distribution coin. But there are certainly not mutually exclusive. 

While suggesting using a trust to manage and distribute assets, most estate planning professionals will also suggest a will to ensure that the remainder of your estate is distributed as you see fit while minimizing the effect of probate. 

Some may even recommend a pour-over will, a kind of testament written to ensure that the remainder of a person's estate is distributed into their trust

Another key feature of a will is that it can name guardians for your children and dependents, and trusts cannot do that. 

What Should Your Estate Plan Look Like? 

Many law firms and specialists urge clients to avoid "do-it-yourself" estate plans because the strength of any given estate plan lies in its specificity given the estate's circumstances. Trusts, wills, powers of attorney, and advance directives each have their pros and cons, different implementations, and minute state-to-state nuances that affect when and how these tools could be used, and why. 

However, one thing is for sure: it is never worth dying intestate. If you want control over when and how your estate is managed after death, be sure to contact and speak with an estate planning professional. If you still have questions about testate vs. intestate, contact a professional today.

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Whether you need help creating a living trust or navigating probate, our living trust law firm's compassionate team of estate planning lawyers and probate lawyers are here to help you and ready to answer your questions.

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