Intestacy and Intestate Succession Laws

If a person dies without a will they are said to have died intestate and the distribution of the deceased person's assets (real property and personal property) is determined by the state's intestate succession laws—which are usually located in a state’s statutes—often in the estates code or probate code.

In other words, if a person does not make a written will directing how their assets are to be distributed at their death, the distribution of their estate's assets defaults to the state's intestate succession laws—which generally distributes the estate's assets to the deceased person's (decedent's) surviving relatives.

Need for Court Supervised Administration of Estate

If a deceased person (decedent) died without a will (died intestate)—or is deemed to have died without a will because the will was not timely offered for probate—the decedent's estate may or may not need to be administered with court supervision—also known as administration (independent or dependent) or intestacy probate.

In making this determination, the first question may be whether all real property in the decedent's estate will be transferred to a surviving spouse (or other relatives) by operation of law under the state's community property laws (if it is a community property state), elective share laws, right of survivorship laws, or intestate succession laws. These laws are usually located in a state’s statutes—often in the family code, estates code, or probate code.

The second question may be whether there is money or property due to the estate that needs to be collected and whether the estate has debts that need to be paid.

And the third question may be whether there are any unknown heirs of the decedent that should be identified, located, and notified of the decedent's death and estate.

If the answer to each of these questions is no, there may be no need for a court-supervised administration or intestacy probate of the estate.

Probate

Probate is the court-supervised process for legally recognizing a person’s death and giving legal authority to one or more persons to deal with the estate’s creditors, debtors, and beneficiaries.

Probate—with or without a will—is generally necessary when the decedent owned personal property and real property at the time of death, and the next rightful owners of the property (heirs) need to be identified and documented so possession and ownership of the property can be transferred in a legally defensible way. Probate is also generally necessary when the decedent had outstanding debts at the time of death.

The law generally distinguishes between probate assets and nonprobate assets. Probate assets are property that passes to the next owner at the decedent's death through a will. Because a will was historically known as a testament, these probate assets are sometimes called testamentary assets.

Nonprobate assets (nontestamentary assets) are those assets that are not disposed of by will or by the laws that determine the transfer of property when a person dies without a will (intestate succession laws). Nonprobate assets are said to pass outside the probate estate.

Common examples of nonprobate assets are:

• property that passes by virtue of a contract with a designated beneficiary—such as life insurance policy proceeds and retirement plans (e.g., 401k, IRA);

• property that passes by right of survivorship, such as joint checking and savings accounts, certificates of deposit, and POD (payable on death) accounts;

• government benefits that are paid after the decedent's death, such as Social Security survivor benefits, Veterans benefits (survivors' pension or death pension), and U.S. Civil Service death benefits for a surviving spouse and children; and

• property in an inter vivos trust whose distribution is determined by the trustee after the decedent's death.

Thus, if the decedent died with only nonprobate assets—and with no outstanding debts—probate procedures are generally not necessary to administer the decedent's estate. But if the decedent died with only probate assets and some debts, it may be advisable for the estate to use the probate process to pay any debts due and protect the beneficiaries against claims of debt that are not due.

Laws regarding the transfer of property and assets and the payment of an estate’s debts when the decedent died without a will vary from state to state—including the options available for transferring or distributing assets (such as the small estate process or affidavit) and the terminology used for the different processes. Persons dealing with the estate of a decedent who died without a will are often well-served by consulting with a lawyer who specializes in these matters.

In South Carolina, when a person dies without a will, they are said to have died 'intestate,' and their assets are distributed according to the state's intestate succession laws as outlined in the South Carolina Probate Code. These laws prioritize the deceased's closest relatives, starting with the spouse and children, and then moving on to other family members if there are no immediate relatives. Court-supervised administration of an intestate estate may be necessary to handle the transfer of real property, collect debts owed to the estate, pay the deceased's debts, and identify heirs. Probate is the court process for settling a deceased person's estate, whether they had a will or not. It involves gathering the deceased's assets, paying debts and taxes, and distributing what remains to their heirs. However, not all assets require probate; nonprobate assets, such as life insurance proceeds, retirement accounts with designated beneficiaries, property with right of survivorship, government benefits, and property held in a living trust, transfer automatically upon death and are not subject to probate. If the deceased had only nonprobate assets and no debts, probate might not be necessary. The specifics of probate and intestate succession can be complex, and it is often advisable to consult with an attorney to navigate the process.