Estate Planning For Dummies
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If you have a valid will, you are said to die testate, meaning you have spelled out your intentions completely and legally in your last will and testament. A will status of intestate means you don’t have a valid will. When only some of your assets are covered by a valid will, you are partially intestate.

Be sure to periodically consult with your attorney to make sure that your will is complete, current, and has been properly signed and witnessed, and you will increase the likelihood of your will status being testate (remember, that’s good!).

Depending on your particular circumstances, the implications of your intestacy can be far-reaching. Most importantly, dying intestate results in your estate being distributed through the laws of intestate succession — a technical way of saying that the legal system decides how your estate is distributed. Essentially, your state writes a sort of a virtual will, made up of your state’s default clauses that apply to the particulars of you, your family, and your estate.

Intestate means that you have no say whatsoever in how your estate is distributed and who receives it. The intestate succession laws vary by state, but are usually similar in purpose, basically determining who receives your estate. The intestate law establishes a particular priority for distributing your estate. Did you have a spouse? Did you have children? What other relatives are in the picture?

If you die intestate and you had wanted to leave $100,000 worth of IBM stock to the family housekeeper who has been with you for years, and who even worked for your parents, your housekeeper will most likely never receive anything from your estate. Of course, whoever does wind up with that $100,000 worth of IBM stock according to the intestate succession laws may later transfer that stock to the housekeeper, as you wanted, but don’t count on it!

Partial intestacy is a no man’s land when part of your estate isn’t covered by your valid will; it’s an in-between will status, not quite testacy but not quite intestacy, either. Very often, forgetting to include a residuary clause in your will is what causes you to be considered partially intestate when you die. Technically, your will’s residuary clause covers the leftovers in your estate that you didn’t explicitly mention in real property clauses or personal property clauses.

If you have prepared your will, you may think that you no longer have to worry about being intestate or partially intestate. Wrong! You may have overlooked some little item that could negate your will completely if a disgruntled family member contests your will’s validity.

The result, if that disgruntled person is successful: You may be rendered into intestacy if your will is declared invalid, resulting in your estate being distributed through intestate succession.

About This Article

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About the book authors:

N. Brian Caverly, Esq., is an attorney-at-law emphasizing estate planning and elder law. Jordan S. Simon is Vice President of Asset Management at Venture West, a Tucson-based investment firm.

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