Where intestate describes the person, intestacy describes the machinery — the statutory scheme each state maintains to distribute property when nobody left instructions. Every state has one. It runs automatically, requires no petition to invoke, and applies whether or not the family thinks the result is fair.
The design principle is presumed intent based on family relationship. Legislatures assume most people would want their property to go to a spouse, then children, then parents and siblings, and outward through degrees of kinship. It is a reasonable guess about the average person, applied as a rule to everyone regardless of how far from average their situation is.
The mechanics vary more than people expect. States differ on the spousal share, on how descendants of a predeceased child take, on whether adopted and half-blood relatives are treated equally, and on how community property is handled in the nine states that use that system. Two identical families in neighboring states can see materially different outcomes.
Intestacy also reaches into estates that have a will. If a will disposes of specific gifts but omits a residuary clause, or if a beneficiary dies first with no alternate named and no anti-lapse statute applying, whatever is left over passes by intestacy. Partial intestacy inside an otherwise valid will is a common and entirely preventable drafting failure.
Frequently asked
- Can a family agree to distribute differently than intestacy requires?
- Sometimes, through disclaimers or a settlement agreement among all heirs, and courts will often approve an arrangement everyone consents to. But it requires unanimity, which is precisely what is missing in the families where this matters most. One heir who refuses, or a minor heir who legally cannot consent without court involvement, ends the option. Relying on your family to agree afterward is not a plan.
- How do grandchildren inherit if my child died before me?
- Usually by representation, meaning your grandchildren divide the share their parent would have taken. The wrinkle is that states use different methods — per stirpes, per capita at each generation, and older variants — and these produce genuinely different amounts when descendants are spread unevenly across branches of the family. Your state's statute picks one. If you have a view about how your descendants should share, a will lets you set the method yourself.
- Does intestacy override my beneficiary designations?
- No. Intestacy applies only to the probate estate — property with no other destination. A retirement account, life insurance policy, transfer-on-death account, or jointly held property with survivorship rights passes directly to the named or surviving owner regardless. This means someone can die intestate and have most of their wealth transfer smoothly, while a smaller pool of unassigned assets goes through the statutory formula.