There are two types of succession in estate law: testate succession, which applies when the deceased left a valid will, and intestate succession, which applies when they didn’t. The difference decides who inherits, how much each person receives, and how much say the deceased had in the outcome. In testate succession, the written will controls. In intestate succession, a state statute controls, and the family has no ability to change the formula.
Intestate Succession
When someone dies without a valid will, state law steps in as the default inheritance plan. Every state has an intestate succession statute that distributes the estate based on each potential heir’s relationship to the deceased. The people who inherit this way are called heirs, and their shares follow a rigid priority order the deceased had no hand in setting.
The hierarchy starts with the closest family. A surviving spouse and children almost always come first. If the deceased left both a spouse and children, most states split the estate between them, though the exact shares vary widely. Some states give the spouse the first portion of the estate plus half the remainder. Others split everything evenly between the spouse and children. If only a spouse survives and there are no children, the spouse usually takes the entire estate.
When no spouse or children exist, the estate moves outward to parents, then siblings, then nieces and nephews, and eventually to more distant relatives like cousins. Heirs typically need to prove the relationship through birth certificates, marriage records, or adoption paperwork before a court will recognize their claim.
Per Stirpes vs. Per Capita
A complication arises when an heir dies before the person whose estate is being divided. States handle this in two main ways. Under per stirpes distribution, the more common approach, the deceased heir’s share passes down to that heir’s own children. If you had three children and one died before you, that child’s kids would split their parent’s one-third share. Under per capita distribution, the estate is divided only among living heirs in the same generation, and the deceased heir’s children receive nothing. Which rule applies depends on state law, and it’s one of the strongest arguments for having a will rather than leaning on the default.
When No Heirs Can Be Found
If no living relative turns up after a reasonable search, the estate escheats to the state. The government takes ownership of whatever remains after debts and administrative costs. Courts don’t rush this. The probate process includes efforts to locate potential heirs, and some states maintain unclaimed property funds for years before finalizing an escheat. It still happens, and it’s the clearest illustration of how blunt the intestate system can be compared with a will.
Testate Succession
Testate succession takes over when the deceased left a valid will directing who should receive their property. The will overrides the default intestate hierarchy, letting the person (called the testator) name specific individuals, charities, or organizations as beneficiaries. People who inherit through a will are called legatees or devisees, which distinguishes them from heirs who inherit by bloodline under intestate law.
The core principle is simple: a person’s written wishes take priority over what the state would otherwise dictate. You can leave property to a close friend instead of a sibling, fund a charity, or divide things unevenly among your children. That freedom is the point of writing a will in the first place.
What Makes a Will Valid
For a will to hold up in court, it has to meet formal requirements that vary by state but share common elements. The testator must have testamentary capacity, meaning they understood what they owned, who their natural heirs were, and what the will would do. The will must be signed by the testator and witnessed by at least two disinterested adults who physically watched the signing. Witnesses should not be beneficiaries, since that creates a conflict of interest that can trigger a challenge.
A holographic will is one written entirely (or in its material portions) in the testator’s own handwriting and signed by the testator. Roughly half of states recognize holographic wills, and those that do generally waive the witness requirement. The tradeoff is heavier scrutiny in court, because there are no witnesses to confirm the testator’s intent or mental state when the document was written.
Grounds for Contesting a Will
A will isn’t bulletproof just because it exists. Interested parties can challenge it in court on several grounds, and these contests are where succession disputes get expensive and personal. The most common bases are:
- Lack of mental capacity. The testator didn’t understand what they were signing, what they owned, or who their natural beneficiaries were when the will was executed.
- Undue influence. Someone pressured or manipulated the testator into writing the will a certain way. Courts look closely at this when the will represents a dramatic departure from prior versions or the testator’s previously expressed wishes.
- Improper execution. The will wasn’t signed, witnessed, or notarized according to the state’s formal requirements.
- Fraud or forgery. The document was falsified, signatures were forged, or the testator was deceived about what they were signing.
Judges don’t set aside wills simply because they seem unfair or surprising. The bar is high. You need evidence of a specific legal defect, not just disappointment with the outcome.
The Surviving Spouse’s Elective Share
One limit on a testator’s freedom applies in most states: you generally cannot completely disinherit a surviving spouse. The elective share (sometimes called a forced share) gives a surviving spouse the right to claim a minimum portion of the estate regardless of what the will says. In most states that recognize this right, the elective share is typically one-third of the estate if the deceased had children, or one-half if they did not.
The surviving spouse has to actively elect to take this share, usually by filing a claim within a set deadline after the will is admitted to probate. A prenuptial or postnuptial agreement can waive the elective share, which is one reason estate attorneys push for those agreements in second marriages or blended family situations. If a will leaves a spouse less than the elective share, that provision probably won’t survive a challenge.
Property That Passes Outside Both Types of Succession
Neither testate nor intestate succession covers everything a person owned. Certain assets transfer automatically at death based on how they’re titled or who’s named as a beneficiary, and they bypass both systems entirely. This matters because people often overestimate what their will controls.
- Life insurance policies with a named beneficiary pay directly to that person.
- Retirement accounts such as 401(k)s and IRAs with designated beneficiaries transfer outside of probate.
- Jointly held property with survivorship rights passes automatically to the surviving co-owner.
- Payable-on-death (POD) and transfer-on-death (TOD) accounts go straight to the named individual.
The practical consequence: if your 401(k) beneficiary form still names your ex-spouse, that’s who gets the money even if your will says otherwise. Keeping beneficiary designations current matters as much as having a will in the first place.
A revocable living trust works similarly. You transfer property into the trust during your lifetime and serve as both trustee and beneficiary. After death, a successor trustee distributes the trust assets according to your instructions without court involvement. Trust distributions stay out of the public court record, and there’s no wait for a judge’s approval. The catch is that any asset you forgot to move into the trust during your lifetime still has to go through probate.
What Happens After Death in Either Type
Whether succession is testate or intestate, most estates go through some version of probate: the court-supervised process for validating the will (if one exists), appointing someone to manage the estate, settling debts, and distributing assets.
Who Runs the Estate
In testate succession, the will typically names an executor. The court confirms this appointment by issuing letters testamentary, which give the executor legal authority to act on the estate’s behalf. In intestate succession, the court appoints an administrator, usually a close family member, and issues letters of administration that serve the same function.1Legal Information Institute. Letters of Administration Either way, the representative has a fiduciary duty to manage the estate’s assets responsibly and distribute them according to the will or state law.
The representative files a petition with the probate court in the county where the deceased lived, along with the death certificate, the original will (if one exists), and an inventory of the estate’s assets and debts. Filing fees vary by jurisdiction and estate size, typically ranging from under $100 to several hundred dollars.
How Long It Takes
Most estates take six to eighteen months from the initial filing to final distribution. Simple estates with a clear will and cooperative beneficiaries wrap up toward the shorter end. Contested wills, disputes among heirs, hard-to-value assets, or outstanding creditor claims push the timeline longer. The mandatory creditor notice period alone accounts for several months of waiting even when everything else runs smoothly.
Small Estate Shortcuts
Every state offers some form of simplified process for small estates, letting families avoid the full probate machinery when the deceased didn’t leave much behind. The most common tool is a small estate affidavit, which allows heirs to collect assets by filing a sworn statement rather than opening a formal probate case. Dollar thresholds vary dramatically, ranging from roughly $10,000 to over $150,000 in personal property. Some states exclude real estate from these simplified procedures entirely, while others include it under separate limits.
These shortcuts save time and money, but they have restrictions. There’s usually a waiting period after death before you can file, the estate’s debts must still be paid, and all heirs typically need to agree. If the estate exceeds the state’s threshold or includes property that doesn’t qualify, you’re back to formal probate. For a parent who left behind a car, a modest bank account, and some personal belongings, the small estate affidavit is often the only process the family actually needs.