Intestacy is the state of dying without a Will. If a person dies without a will he is said to have “died intestate.” The estate of a person who has died intestate goes through probate court. The state’s intestacy laws will determine who will inherit the decedent’s assets. Typically the takers are relatives of the decedent. In order to take under intestacy, the person must survive the decedent.
Keep in mind that even if you have a Will, it will still go through what’s known as probate, but with your Will guiding the process, things tend to be much cleaner, simpler and faster.
A probate court has the jurisdiction and competence to deal with the administration of estates. Probate courts handle the “probate” of wills, guardianship, conservatorship and estate administration. And, in cases of intestate deaths, they oversee the handling of those estates, too.
Intestate laws are governed by the laws of the country where you reside. Depending on the level of intestate (whether you have a Will at all, or if your Will is simply unclear or assets are missing), all bank accounts, real estate, annuities, life insurance proceeds and more could be at risk of going to the wrong person. Simply put, if you die without a Will, the law would make a Will for you. When an estate goes through probate, an inheritor must file a petition to justify why they have a claim to the estate. To further complicate things, multiple people can file a petition. In cases of intestacy, based on all the information in the petitions, and any remaining documents, the court will make a decision on how the assets will be distributed.
Succession, on the death of a person may follow either: (a) testamentary succession (i.e. a Will), or (b) intestate succession (i.e. without a Will).
A person is considered to have passed away intestate in respect of property (a) which he has not disposed under a Will, or (b) the disposition under the Will is not capable of taking effect (i.e. invalid bequest, illegal bequest etc.). Intestacy may either be total intestacy or partial intestacy.
In India, there is no uniform code or specific law that governs the idea of inheritance of property. The general laws relating to inheritance can be directed to The Indian Succession Act, 1925, applicable to all Indian citizens, the exceptions being Hindu, Muslims, Jains, Sikhs and Buddhists.
It is the Hindu Succession Act, 1956 that governs non-testamentary or intestate inheritance for Hindus, Jains, Sikhs and Buddhists; For Muslims, for non-testamentary succession The Muslim Personal Law (Shariat) Application Act, 1937 is applied, but where a person dies testate, it is also governed by The Indian Succession Act. Parsis and Christians also follow the general act and inter-faith marriages follow the Special Marriage Act, 1954. In case of a foreign citizen who inherits property from an Indian, the respective law of the latter’s region will apply in that case.
The words intestate and probate interchangeably. But in reality, the terms mean two completely different things. Dying intestate is very different than your Will going through probate.
Intestate, as we’ve discussed, means a person passes away without a proper Will in place. Their assets will go through the probate processes. However, since there is no documentation to direct the judge as to who should be considered a Beneficiary, state law would be used to decide on the distribution of all assets. You have no control over who gets what from your estate.
Probate is a court-supervised procedure that determines the organization of a deceased person’s assets, taxes and debts owed and the distribution of remaining assets to beneficiaries. Whenever a person passes, Will or not, their estate and assets in the Will go through the probate process.