The death of a family member is always a difficult time, emotion and a load of administrative procedures are combined. In this article we will explain the difference between testate vs intestate succession. That is, the difference between whether the deceased person left a will drawn up, or not. As you can see, there are different probate procedures.
There are people who decide to plan in life what will happen to their assets after their death. Others, on the other hand, do not plan it. This can make a huge difference for the family dealing with the management and reorganization of inherited assets. Our expert estate planning attorneys are ready to advise you.
What are the differences between “testate” vs “intestate” succession?
The figure of succession, or distribution of assets after the death of a person, is directly subject to whether the person left their intentions in writing and legalized.
If you leave a probate estate, you are ensuring that:
- Your will explains your final wishes clearly and completely.
- Courts recognize a will as legally binding. And they see that your estate is distributed exactly as you specified.
In the case of an intestate succession, the situation is as follows:
- There is no valid will that the court can honor.
- No will was presented to the court or the version provided was out of date or unacceptable.
- If the court decides that your will is invalid, it will be thrown out. All your property will be subject to legalization. It will then be distributed in accordance with state law. This process is known as intestate succession.
There is a third state for wills. This is known as “partial integrity”. The probate court considers a partially intestate will to be valid. However, the court identifies a problem with a part of it. The judge in the case might consider the will to be partially intestate if you forgot to include an asset or if it decides that the will is not legally binding.
Note: Check out our article on the difference between executor and estate administrator.
Definition of succession
Succession is the legal process that occurs after the death of a person. This must be completed in order to properly transfer the estate of a deceased person to their legatees. That is, the transfer of possession of their property and assets.
As we have already begun to review, such transfer of assets can be:
- To the people named in the Will. This in case the deceased died with a valid will.
- To the legitimate heirs of him. This in case the deceased died intestate. Or in other words, he did not have a valid will.
The legitimate heirs are the persons entitled by law to the possessions of the deceased when there is no will or when the will does not dispose of all the possessions.
Then, once the death has occurred, it will be necessary to review the status of the estate. And at this time it is reviewed whether the succession is testated vs intestate. Keep reading. Below we will explain when it is necessary to legitimize the inheritance of the deceased.
When should the deceased’s inheritance be legitimized?
The need to legitimize the inheritance of a deceased person depends on the conditions of his property titles when he dies. Thus, if a property such as a bank account was in the name of the deceased only, a process to legitimize the transfer must be carried out.
Normally, you need to legitimize the deceased’s estate if you need to do the following:
- Determine the validity of the deceased relative’s will through a probate process. This process is done to transfer the assets to the people specified in the will to inherit the assets.
- Change the title (possession) of real or personal property (these can be bank accounts, stocks or bonds) that belong only to the deceased. It would also be necessary to change the title of possession of assets that were shared with other people without the right to possession in case of survival. The title change would also be necessary if the named beneficiaries on an account or policy die before the deceased. Or in the event that the deceased has not named any beneficiary.
- Get the deceased’s medical records.
When should we not legitimize wills and successions?
In some cases, the legitimation process is not necessary. For example, if the deceased shared ownership of a property with another person, and possession automatically passes by law to the surviving co-owner (s). Probate is required when certain property passes to a surviving beneficiary named in the will.
Likewise, the collections of a life insurance policy or a pension that a surviving beneficiary has named, passes directly to that person without the need to legitimize.
In the case of a property subject to a trust created by the deceased, it also does not require going through a legitimation process.
The partial intestacy is a no man’s land when part of the estate is not covered by the valid will. It is not entirely testament but not entirely intestate either. It is quite common to forget to include a residual clause in your will. That is what causes it to be considered partially intestate when the person dies. Technically, the residual clause in your will covers the leftovers in your estate that you didn’t explicitly mention in the real property or personal property clauses.
Power of attorney
It is important that you keep this concept in mind: Power of Attorney. Here we briefly explain what it means. But we recommend that you review in detail all the types of Powers of Attorney and their implications in our section “New York power of attorney” that delves into that.
A Power of Attorney is a signed document in which you authorize another person to have power over a specific circumstance. This means that that person other than you will have the possibility to act as if they were you.
For the purposes of inheritance, you must know two types of powers of attorney:
- General power of attorney: it is a power that the principal gives to the agent so that the second can perform all the acts that the first would do. Ultimately, for purposes of the law, the agent becomes the principal. It is used for multiple procedures. This power of attorney is effective immediately from its creation and its expiration date will be when the principal terminates and revokes it.
This type of power of attorney is invalid if the principal is incapacitated or dies.
- Durable Power of Attorney: This is very similar to the General Power of Attorney. The main difference between the two is that the durable power of attorney survives in cases where the principal is incapacitated.
This can provide the agent with the power to make medical decisions about, for example, end-of-life care for the principal.
Following the above, consider that a durable power of attorney may be the solution if you are looking to protect your assets through a will or trust. As you may already know, it is important to have a mechanism in place to protect your assets. This gives you peace of mind in ensuring that your business, financial and personal affairs are in good hands.
Fundamentally, the durable power of attorney allows the person you designate to act on your behalf in front of the authority and any procedure that must be done.
Difference in the processes: Testate vs intestate
We have the differences between testate vs intestate that we already reviewed, on the clarity in determining the wishes of the deceased. But in addition, another fundamental difference can be found in the administrative processes that must be followed for each case. Both the testamentary succession and the intestate succession process follow their own paths.
The probate process
If you want to ensure that the terms of your last will and testament are followed after your death, you must ensure that:
- Keep the document as complete and up-to-date as possible.
- Make sure your will is signed and witnessed in accordance with applicable state law.
- If you have doubts or you are unfamiliar with your state’s laws on wills and probate, we recommend that you regularly consult an experienced attorney. Discussing the details will give you the peace of mind you need.
Once your will is properly drafted. The probate court must find it valid. If this is the case, your estate will be distributed exactly as you requested through a process called probate. If you die with a valid will, you can:
- Appoint a personal representative to carry out your final requests.
- Name beneficiaries who will inherit your property.
- Appoint a legal guardian for your children.
- Establish a testamentary trust.
Legal procedures for probate in the United States vary from state to state. If you are familiar with the probate laws in your state, you can explicitly state in your will how the process will occur. For example, you can request simplified informal estate administration instead of formal court-supervised procedures.
When a person dies, the person you named as a personal representative, known in some states as an executor, must:
- Present the deceased’s will to the probate court for approval.
- Notify your beneficiaries and creditors.
- Pay the corresponding debts and taxes.
- Finally, the personal representative must distribute the property in accordance with the provisions in the will.
The Intestate Succession Process
Normally intestate succession occurs when a person dies without leaving a valid will. However, other situations may arise that require the properties to be distributed in accordance with state law. an intestate succession can occur if the person did not sign their will in accordance with state law, or if they chose to revoke or destroy their will during their lifetime.
Even if when the person died they thought they had left their will complete and ready, it still might not be enough. The probate court reserves the right to consider your will invalid for many reasons outlined in state statutes.
If you die intestate, the legal system takes control of your estate and distributes the property according to procedures established in state statute. With intestate succession, your property can only be distributed to your family members, which would exclude any single partners, friends, or charities that you have named as beneficiaries. If you die without living relatives, the State will inherit your estate.
If your will does not name an heir to one or more of your assets, the court may decide that your will is partially intestate. To prevent this from happening, you must ensure that your will contains a residual clause. This is the clause that allows you to determine who inherits any property that is not listed in the will. A partial intestation can also occur if a beneficiary dies before you, which can void a section of your will.
Difference between testamentary and non-testamentary assets
Thinking about testate vs intestate succession you should consider the following too. The property or assets of a deceased person are classified into two. These are testamentary assets, and non-testamentary assets. That is, of those that can be identified in a will, and those that cannot.
If we are looking for examples of probate assets, we can include:
- Real estate (family home, rental property, commercial real estate).
- Personal property (jewelry, collectibles).
- Savings accounts.
On the other hand, as a general rule, we can mention that any account that requires the election of a beneficiary designation are non-inheritance assets. Examples of them are:
- All qualified retirement plans.
- Life insurance policies.
In other words, non-estate assets are not part of an inheritance, but are passed on to the deceased’s chosen beneficiaries prior to death. Consequently, they are transmitted by contract at death. Not by testamentary disposition or as part of the probate process.
Note: Check out our article on New York executor of state. You may also be interested in what happens to a joint account with a deceased parent.
The benefits of writing a will
Writing a will can require a tough, but necessary, conversation with your spouse, children, and extended family members. People often don’t write a will out of fear or misconceptions about the process, but with more information, you can make the right decision for your family by writing specific arrangements that meet your needs.
Writing a will offers significant flexibility over your estate, including:
- Tax planning to ensure your loved ones get the most out of their wealth.
- Contribution designations to charities. To leave a legacy that goes beyond your family.
- Prevention of new legal challenges to your assets.
Understanding the benefits of a will and estate plan comes with understanding its implications. With more knowledge, you will most likely gain a better insight into how the probate process can often make a clearer future for your family. And above all the certainty of leaving peace of mind for them after their departure.
Experienced lawyers for testate vs intestate issues in New York
Now you know more about the differences from testate vs intestate succession. Anticipating good financial planning, and being organized with the accounts, is a practice that prevents future problems. If you want to make sure you leave the division of your assets unambiguous, so as not to generate disputes between your heirs, you must act now.
By making sure you create wills and other estate planning documents today, you can ensure your wishes are met in the future. In doing so, you are ensuring that your wealth and assets are distributed according to your wishes and not according to the impersonal plan created by the state.
Ideally, you should seek advice from specialist professionals. Our New York wills lawyers are ready to serve you. They will be able to solve your doubts and recommend the best strategy according to your particular case.
In this article we already gave you a general look at the difference between testate vs intestate succession. You already know the benefits of planning a legitimate inheritance that leaves no room for doubt.
For these and other services contact us today. We look forward to it!