Most people plan for their own death and make a will giving away or ''devising'' all of their property. A person who makes a will is called a testator. Dying without a will is called dying intestate, and the deceased person's property will be distributed to his heirs according to the intestacy laws of the state where the deceased person lived.

Sometimes there's a will, but it's not adequate because it was not created properly or it doesn't cover all possible situations. An example would be where a beneficiary has died, certain property included in the will was no longer owned by the testator when he died, or there's no provision in the will for property that can't be distributed under the will because the intent of the decedent is not clear. Simply put, as to gaps in a decedent's will, he may be said to have died partially intestate and the rules of intestate succession would apply to that portion of the estate.

Rules of Intestate Succession

Generally, a will may specifically exclude an heir. This is called negative intent. A person may wish to exclude an heir from his will because that heir has more wealth than the other heirs, the person has made other provisions for that heir's financial well-being, or the person simply does not want to leave property to that heir. A person might write a will for the purpose of excluding a certain person as an heir, and then direct in the will that his estate should be distributed to his other heirs according to the distribution scheme set out under state intestacy law. A state's intestacy law will define who a deceased person's heirs are, and wills often use the definition of an heir under state intestacy law as a reference point for defining terms in the will. For example, a will might provide that if certain beneficiaries are dead when the testator dies, then the estate will be distributed to the testator's heirs as defined in the rules of intestate succession under the state's intestacy law.

If a person has died without a will, the state's rules of intestate succession will control who'll receive the decedent's property, and how much they'll get. Typically, a decedent's surviving spouse and children will split the decedent's estate, and the rules of intestate succession also cover situations where extended family members will be heirs of someone who died intestate. Finally, intestacy laws will also apply in situations where a will has improperly excluded someone from receiving a share of a decedent's estate, such as when a spouse or minor child was completely excluded from a will contrary to state law. The intestacy law fills the gap, and details what the omitted person's share of the estate should be.

Ways to Exclude Someone as an Heir

Here are some ways that a testator could exclude someone as an heir or a beneficiary under a will:

  • The will could expressly state that an heir is excluded.
  • The will could state that the heir is excluded and state which heirs are to receive the testator's property.
  • The excluded heir could be treated as though he had died before the testator, with his share of the property passing to his children.
  • In some states the testator can merely ''disinherit'' the excluded heir by leaving him out of the will and not mentioning him at all.
  • Create a ''catastrophe clause'' (sometimes called a residuary clause or doomsday clause) that disposes of assets after certain heirs have received their inheritance and the rest of the estate can't be distributed because the intended heirs have died. These clauses often leave residual property to charity or to specific heirs, such as extended family members.

Partially Intestate

If a testator disinherits an heir and his will doesn't include provisions for all of his property, then he's said to have died partially intestate. The portion of the estate not included in the will is then subject to the rules of intestate succession. The effect might be that an heir disinherited under a will could receive property under the intestacy laws. So, when preparing a will, it's important to make sure that all possibilities are covered and the intent behind the will is carried out.

Questions for Your Attorney

  • Can I make sure that one of my relatives doesn't receive anything from my estate when I die?
  • If I disinherit one of my close relatives, can they challenge my will after I'm gone?
  • Who receives my property if the heirs or beneficiaries named in my will die before me?
  • Can my will be flexible enough to cover changes in my finances in the future, for example, if I acquire a substantial amount of assets or property?

Tagged as: Wills and Probate, wills, probate, heirs, devising, intestate, succession, negative intent