The Difference Between Testate and Intestate

Rohan Mathew

Updated on:


When a person dies, there are so many things that the people they leave behind have to deal with. Beyond the fact that survivors are grieving the loss of their loved one, many people find that they have to take on the responsibility of making decisions about the type of service they want to plan, filing for the death certificate and settling up with the person’s life insurance company. Whether the death is imminent, or it is unexpected, having to deal with the legal process that is involved can be overwhelming.

Most people don’t know anything about legal terms, however when it comes to settling a decedent’s estate, there are two terms people need to familiarize themselves with. Being able to understand the difference between the terms testate and intestate, how they affect the decedent’s will and the impact they can have on survivors is extremely important to the probate attorneys at Dickson Frohlich. Many attorneys who specialize in estate planning urge their clients to familiarize themselves with the terms intestate and testate because it helps them navigate the probate process much easier.

Dying Testate

When a person dies intestate, this means that they have passed on with their affairs in order. When there is a will in place, there really is nothing for the surviving family members to do other than file it and the other necessary documents with the probate court. It is important for people to understand that a valid will means that the document has to either be printed, typed or handwritten, it must be executed without duress, it must be signed, notarized, and it has to be witnessed by at least two people.

Thousands of people create wills each year, however many of them fail to meet all the requirements necessary to ensure the legitimacy and the validity of the document. The importance of making sure all the required elements are included in a will is because the final wishes of the decedent may not be granted if they are not. The statutory requirements to ensure the validity of a will include the following:

  • The will must be written. It can be in print, handwritten or typed
  • The will has to contain the signature of the decedent
  • Two people must witness the sini9ng of the will, and their signatures must also appear on the document

Why Creating a Will Is So Important

Most people will agree that there is nothing pleasant about planning for what life might look like for their family members and friends when they pass on. The fact of the matter is everyone will pass on at some point, and it is better for all parties involved if there is a valid will in place when they die. There are a number of advantages associated with having a valid will in place.

Your Property Goes to Whomever You Choose

During the estate planning process, a person has the freedom to choose who will inherit designated items from their estate. If a will is not in place, the people who the deceased person desired to have certain items from the estate could be left with very little, or nothing at all. Persons who the deceased person may have intended to receive anything from the estate could end up receiving the vast majority if not all o9f their assets when they die. This can happen in cases where two people are embroiled in a contested divorce. If a valid will is not in place, and one of the parties’ dies, the surviving party could file a claim on the estate.

Take Care of the Children

Parents are responsible for taking care of their minor children, and that responsibility does not end with the death of a parent. Anyone with children need to make sure that they have a will in place, and that it is readily accessible to someone they trust. When parents are engaged in the process of estate planning, they can choose who they want their children’s guardian to be should they die before they become adults. Funds can be placed aside for their college education as well as other expenditures during this process as well.

In addition, a testamentary trust can be included in the last will and testament of people with minor children. These types of trusts trust are set up to be enacted upon the death of the parent. The purpose is to set aside property for the children of the deceased or other designated survivors. During the time that people are planning their estate with their attorney, they can also choose and executor of their will. This is the person who has the responsibility of making sure that the instructions of the will are carried out.

Dying Intestate

When a person dies without a will, it is defined as being intestate. When this occurs, it can make what is already a very difficult progress for families, even more so. When there is not a will in place the state takes on the responsibility of distributing the assets of the deceased person in a court of law. The applicability of the law is determined based on the state the deceased lived in. In the majority of cases, the assets of the deceased are dived up among the spouse and the children. The court may or may not honor the will of the deceased if they do not have a valid will. Succession laws can come into play in these types of cases.