If the State Writes Your Will

April 13, 2006

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If you die intestate — that is, without a will — the state where you have your permanent residence (and, if different, the state in which your real estate is located) will apply its probate laws to determine how your property will be split up among your closest relatives.

When we say "closest" relatives, we mean closest by legal relationship. Your state's probate court will not be able to consider whether you loved or loathed a particular relative. The question will be limited to the relative's legal relationship to you. Thus, if a person falls within your state's category of closest living relatives entitled to inherit from you, that person will get a share of your wealth at death.

To put it another way, if you die without a will, your home state will write one for you, by way of its probate laws. If this happens, however, don't count on the state giving away your property to the persons or organizations that you would have chosen. In fact, if you die without a will and without any relatives, your home state will name itself as your relative and will "kindly" agree to accept your property!

However, even if you have a will there are two main instances when state intestacy rules must still be applied:

If your will does not effectively dispose of a particular piece of property. This could happen if the will does not specifically dispose of the property and does not have a provision (usually referred to as a "residuary clause") stating how property not specifically mentioned is to be disposed. Another way this could happen is where you die owning a piece of out-of-state real estate and, under this state's law, your will somehow does not effectively transfer the real estate.
If your will is not valid, either in whole or in part. A will may be invalid as a whole if it does not meet certain state requirements for valid will formation. For instance, if the person making the will (called the "testator") is under age (most states require a person to be at least 18 years old to make a will), or if the will does not contain the signatures of necessary witnesses, it may be found invalid by the probate court. A portion of the will, rather than the whole will, may be invalidated if, for instance, a court would not enforce it based on the fact that doing so would clearly violate an established public policy (such as a will provision that would "give my friend Mack-the-Knife $5,000 if he destroys my boss's Mercedes"). If a will provision is held invalid, and if a residuary provision does not apply, the property distribution would be determined by state intestacy rules.