Testate vs. Intestate: Key Differences

Key Takeaways

• A testate estate is an estate where an individual has died and left a valid will to guide the estate administration process.
• An intestate estate is an estate where an individual dies without having created a valid will and state law must guide the estate administration process.
• Key differences include the level of involvement from the courts, the amount of weight the decedent’s wishes carry, and the ability of beneficiaries to contest their inheritance.
• Avoid intestate probate and ensure your wishes are followed by creating a clear and comprehensive estate plan.

Introduction

Probate is a complex process that involves managing a deceased person’s assets and distributing them from their estate to identified beneficiaries. The probate process is usually guided by the instructions in a will or those outlined by state law.

When led by a will, the administration is considered to follow testate succession, but when it is led by state law, it’s considered to follow intestate succession. These two separate methods of estate administration have important effects on how the process works. 

Understanding the difference between testacy and intestacy and what each process entails is crucial for preserving the best interests of your loved one’s estate and avoiding confusion or disputes. 

What Is Testate Succession?

Testate is a term that describes an estate where someone has died with a legitimate last will and testament. Guided by a valid will, testacy involves the distribution of assets in accordance with the wishes of the testator (also known as the will creator). The testator will leave a detailed plan for who should act as the executor of the estate and which beneficiaries should receive assets.

What Does Testate Administration Include?

The testate administration process is usually rather straightforward, as the estate will be managed in accordance with the terms outlined in the will. The will should identify all of the assets in the estate, an executor to manage these assets, and beneficiaries to receive them.

The testate administration process includes the following steps:

• Notification of beneficiaries and interested parties of intent to probate estate
• Admission of the will into probate
• Validation of the will by the probate court
• Appointment of the executor named in the will
• Inventorying of assets 
• Distributing assets to beneficiaries based on the terms of the will

What Does Intestate Mean? 

Intestate estate administration is the process for distributing estate property of an individual who has died without a will—this is common when a person owns assets but does not consider developing a fleshed out estate plan. When an estate is managed through intestacy, the distribution of assets will be guided by state intestacy laws.

Intestacy can also occur if someone has left a will but it was later invalidated by the court due to circumstances like undue influence, fraud, or failing to follow the appropriate legal procedures. 

In some cases, a decedent may leave a will that outlines expectations for some of their assets but excludes others. In this case, testate succession will be the process for distributing any assets included in the will, but any assets unintentionally excluded from the will may need to pass through intestate succession. 

What Does Intestate Succession Include?

The process of intestate succession is similar to that of testate succession, except that the administration will be guided by state intestacy laws rather than a will. Because there is no will to outline these steps, the probate court will appoint an administrator to guide the distribution of assets to heirs according to the legal line of succession.

Intestate succession generally involves the following steps:

• Notification of all interested parties and possible legal heirs
• Appointment of an estate administrator
• Marshaling and inventorying of all assets
• Managing estate assets and paying any creditors
• Distribution of assets to legal heirs, such as a spouse or children

In intestate succession, the line of succession is usually as follows, depending on their relation to the decedent: the spouse, the children, the grandchildren, the parents, the siblings. However, the exact share of an inheritance for each party will depend on the laws outlined by the state in which the estate is located.

What Is the Difference Between Testate Succession and Intestate Succession? 

The key difference between testacy and intestacy is who controls the distribution of the estate’s assets. Through testacy, the estate administration process will involve following the will to guide the distribution of assets. Through intestacy, the estate administration process does not have a will to use as a guide, so it will follow state intestacy laws instead.

Key Differences Between Testate and Intestate Succession

The different process between testate and intestate succession has important implications for several aspects of the estate administration process. 

Executor Appointment

In the testate process, an executor is typically identified in the will. The court will review the validity of the will, approve the will to guide the administration of the estate, and then officially appoint the executor into their role.

In intestacy, there is no will created to identify an executor. Instead, the probate court must select an individual, to be known as the estate administrator, to carry out the administration of the estate and its assets. Depending on the case, the court may appoint a close relative in the process who is willing or a third-party professional.

Beneficiary Designations

Beneficiaries are a crucial part of estate administration, as they are the parties in line to receive ownership of the deceased’s assets. How these beneficiaries are identified may differ vastly depending on whether the process is testate or intestate.

In a testate estate, beneficiaries are identified in the will according to the testator’s wishes. This provides beneficiaries with greater confidence that the wishes of the testator will be carried out.

However, with intestate succession, beneficiaries of an estate are determined solely by priority statute. The line of succession in intestate administration is typically as follows:

1. The surviving spouse of the decedent
2. Direct descendants such as children or grandchildren
3. Parents of the decedent
4. SIblings of the decedent
5. Grandparents of the decedent
6. Nieces, nephews, aunts, uncles, or first cousins of the decedent

Court Involvement

Although the probate court is an important part of all forms of probate, the court has slightly less involvement in the testate process compared to intestacy. 

During testate administration, the probate court is responsible for validating the will and formally appointing the executor. The executor will handle the distribution of the estate by following the will but will have to get approval from the court before carrying out the final distribution. The court may also get involved if there are disagreements between the executor and beneficiaries.

Meanwhile, the court may have more involvement in the intestacy process. The court must choose the estate administrator to oversee the administration of the estate and then oversee that these assets are distributed in line with state intestacy laws. Because there is no will identified in the intestacy, there may be more weight on the court to handle beneficiary disputes and clarify the need to follow state laws in asset distribution.  

Decedent’s Wishes

Testate administration allows for the clear administration of an estate according to the decedent’s wishes. In this process, heirs will need to yield to the terms of the will in order to understand the inheritance they are entitled to. 

During intestate succession, however, the decedent’s wishes carry little to no weight because there is no will to prove what they were. After the individual has died, the court cannot rely on anecdotal evidence. Even if a decedent had communicated their wishes to family members prior to their death, it’s unlikely that the court will follow these wishes if they are not clearly documented in a valid will.

Disputes

Interested parties in a decedent’s estate during testacy may have the option to dispute the terms laid out in a will. Beneficiaries can bring a will contest to question the validity of a will and consider an inheritance dispute if they feel that the will was subject to factors like undue influence or happens to conflict with their rights under state statute.

With intestate administration, there is little room to contest the process. Because state inheritance laws are clear-cut guides to distribution, there is little room for beneficiaries to bring a contest. That said, inheritance disputes may be more likely because asset distribution is not clearly outlined in a will, and relatives may have competing claims to assets—still, the court will have little flexibility in these disputes unless these parties have clear claims to ownership of these assets.

Why It’s Important To Understand the Differences

Understanding the difference between testacy and intestacy ensures that you are able to adequately prepare for the probate process. Many people don’t realize that without a clear and valid will, their estate will be left to be sorted out by state law, even if the decedent would have wanted differently.

Intestate succession is often undesirable because the line of succession, according to state law, may not align with an individual’s wishes for how their assets are distributed. It may also result in someone who they never intended being in control of their estate. Interested parties may also be caught off guard if they fail to understand the process.

For example, if an uncle told his nephew that he would pass on his cherished sports car to him, but the uncle did not leave a will, there is the risk that his wishes may not be carried out. If there is no will to prove his intentions, the car may end up going to his spouse as the first in line to inherit assets or be sold with the proceeds being distributed to the remaining heirs, regardless of the discussions he had with his nephew. 

For the head of an estate, understanding the possible outcomes of each process is crucial for taking the proper steps to plan. For other interested parties, this understanding is essential for knowing what to expect after a loved one has passed. 

How To Avoid Intestacy in Your Estate Plan

Avoiding intestate succession offers many benefits for an estate. The assets can be distributed with full clarity, and it ensures that a will creator’s wishes are carefully followed. To avoid intestate succession, the key is creating a comprehensive estate plan to ensure assets are not left to be distributed by the state. 

This plan can include some of the following steps: 

• Drafting a valid last will and testament
• Establishing joint ownership of assets
• Using tools like an LLC or FLP

In crafting the plan, be sure to consult financial and tax advisors who can offer guidance on how to best manage your assets. You may also consider consulting a probate and estate administration attorney who can help you avoid having to pass through intestate succession by helping you identify any holes in your estate plan. 

If your loved one’s estate is potentially heading to intestate probate, but you believe they left a will, it’s often worthwhile to take steps to find it rather than let the situation run its course. You can try to find out if someone left a will or have a consultation with RMO Lawyers to consider estate litigation.

Case Scenario: Navigating a Testate Estate

The following case scenario may highlight some of the potential challenges that may arise in a situation that involves distinguishing between testate and intestate administration. 

Frederick was a successful attorney with a sizable estate who was proactive about creating a will to leave assets to beneficiaries in the family. Some of the assets included his primary residence, his rare art collection, and his car, which he planned to leave to his wife, adult daughter, and brother, respectively.

Frederick bought a new vacation home a year after creating his will. Still, he said he would leave the property to his daughter, Lauren. However, due to his tragic and unforeseen death, he did not get the chance to update his will to include the new home. 

Because Frederick did have a will, all of the property identified in the will could be distributed to the identified beneficiaries through testate administration. The court acknowledged Frederick’s brother, Ted, as the executor, as identified in the will. In line with Frederick’s wishes in the will, Ted ensured that Emily – Frederick’s wife – would receive the primary residence, Ted would receive his car, and Frederick’s daughter Lauren would receive the art collection.

Because it was not included in the will, the vacation house was left to be distributed through intestacy. Ted, believing Lauren, planned to distribute the vacation home to her. However, Emily contested this decision, stating that she should receive the vacation home as it was community property acquired during their marriage and she should be the legal heir to the property. 

The court granted the house to Frederick’s wife as the party next in line to inherit under state law. Even though this conflicted with Frederick’s verbally communicated wishes, there was insufficient proof that these were his preferences, and the court was required to follow state inheritance laws.

This case highlights the importance of understanding the differences between testate and intestate administration and the potential risks that can arise from overlooking these differences. Still, keep in mind that every case is unique, so it’s crucial to consult a skilled probate administration attorney about your circumstances.

Navigate the Probate Process with Confidence with RMO Lawyers

Testate and intestate administration are two different variations of the probate process. During testate succession, the probate process is guided by a valid will, but during intestate succession, it will be guided by state laws with no valid will to follow.

A skilled probate administration attorney can help you understand the two different processes and what each one means for your family’s estate. And, should the estate administration become contested, the estate litigators are ready to help you navigate any challenges that arise. 

Schedule a consultation to discover how you can honor your loved one’s wishes and secure access to your rightful inheritance.