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 determine who will inherit the decedent’s assets. Typically, the takers of the property are relatives of the decedent.
It should be kept in mind that even if there is a Will, it may go through the probate, but with a good Will, things tend to get more straightforward and faster.
A probate court has the jurisdiction and competence to administrate the decedent’s estates. Probate courts handle the probate of Wills, guardianship, conservatorship, and estate administration.
What is an Intestate Law?
Intestate laws are governed by the country where a person resides. Depending on the level of intestate (whether you have a Will at all or if your Will is 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. So, if a person dies without a Will, the law will make a Will for that person.
When an estate goes through probate, an inheritor must file a petition to justify their 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 decide 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 the property; 1) which he has not disposed of under a Will, or 2) the disposition under the Will is not capable of taking effect (i.e., invalid bequest, illegal legacy, etc.). Intestacy may either be total intestacy or partial intestacy.
Difference between Intestate and Probate
People often mistakenly use the words intestate and probate interchangeably. But in reality, the terms mean two completely different things. Dying intestate is very different than probate.
Intestate
It means a person passes away without a proper Will in place. In such a scenario, the decedent’s assets will go through the probate processes. Since there is no documentation to direct the court as to who should be considered a beneficiary or beneficiaries, the state’s law will be used to decide on the distribution of the assets, and there is no control of the decedent’s family over who gets what from an estate.
Probate
It is a court-supervised procedure determining the distribution of a deceased person’s assets, taxes and debts owed. Whenever a person passes, their estate and assets will go through the probate process and be distributed to the beneficiaries in a manner provided in a Will.
Intestacy in the Indian Context
In India, no uniform code or specific law governs property inheritance. Instead, the general rules relating to inheritance can be directed to The Indian Succession Act, 1925, which applies to all Indian citizens except Hindus, Muslims, Jains, Sikhs, and Buddhists.
- Where a person dies intestate, the Hindu Succession Act, 1956 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.
- Parsis and Christians follow the general succession act and inter-faith marriages follow the Special Marriage Act, 1954.
- In the case of a foreign citizen who inherits property from an Indian, the respective law of the latter’s region will apply.
Conclusion: Intestacy Complicates Estate Distribution
Nobody wants to think about death. However, you must have a valid will at the time of death. Not having a valid will means the estate of the decedent will be dealt with as per the applicable intestacy rules, and these rules most likely will not reflect the wishes of the decedent to provide for all of the loved ones.
