Lionel, a married man with four children, planned to get around to making his will for years. Lionel owned two houses, a farm, and numerous items of personal property. Unexpectedly, Lionel died of a heart attack. Lionel never made a will. What will happen to Lionel's property?
The Law of Intestate Succession
When a person dies with a will, the person is said to have died "testate." If a person dies without a will, the person is said to have died "intestate." In the case of an intestate person, the law of intestate succession governs the distribution of the person's property following the person's death. The goal of the law of intestate succession was to provide a distribution schematic which would closely resemble the schematic that the intestate person would have created if he or she had made a will. While ancient law treated real property owned by an intestate person differently from personal property, now both types of property receive the same treatment.
How Does the Law of Intestate Succession Work?
In the fact scenario set forth above, the law of intestate succession might give Lionel's spouse one-third of Lionel's property and provide for the equal distribution of the remainder of the property to Lionel's children. The law of intestate succession varies somewhat from state to state; thus, the law of each state must be consulted for details. Generally speaking, the law of the state where the intestate person was domiciled at the time of his or her death is controlling.
The Benefit of a Will
In light of the law of intestate succession, the question arises as to the benefit of a will. The benefits of distributing a person's property in accordance with a will are, in fact, numerous. At best, the law of intestate succession represents a guess at how an intestate person would have wanted to dispose of his or her real and personal property. The law is based on a traditional family structure and persons not related to the intestate person receive no consideration whatsoever. The distribution schematic under the law of intestate succession may or may not be reflective of the wishes of the intestate person, particularly with regard to who will administer the intestate person's estate or as to who will be the guardian of any minor children of the intestate person. The prudent measure is to prepare a will.