If a person dies having no will or other estate distribution system, such as a living trust, that individual is said to die intestate. When this occurs, a section of the state's probate laws determines how the person's estate will disbursed, generally to the heirs as defined by state law. These laws are based strictly upon blood relation and marriage. The laws vary by state, but most divide the estate among the decedent's spouse, children, and parents. If none of these remain living, the property descends to siblings or other relatives.

Intestacy statutes may also be invoked when a will is determined to be void, or a court declares a portion of a will to be invalid (known as partial intestacy). Additionally, if a will or other documents do not dispose of the entirety of a testator's estate, those designated as heirs under the intestacy law will generally receive the remaining property. This may be true even if the will's specific language disinherits an individual. Moreover, in some states, if a will isn't filed for probate within a specified number of years, the court is required to distribute the estate according to intestacy law.

Probating an estate without a will can be expensive and somewhat complicated. Disputes over property are anything but uncommon, even when a will, trust, and a seemingly sound estate plan are present; they are even more likely to arise when someone dies without them.

Intestate distribution may be simple or complex, depending on the decedent's remaining family. For example, if a person dies leaving a spouse and one or more children who have no children of their own, the law generally distributes the estate to these family members according to a mathematical formula of division which is specified in the particular state's statute. The portion of the estate allotted to the surviving spouse depends upon other state laws governing property within the marriage relationship.

The laws distributing property to surviving children and other relatives use different formulas to divide the property. Under a "per capita" system, for example, the heirs are counted and the estate divided equally among them. In some states, this is applied only if all of the descendants (or, the issue) of the deceased person are of the same degree of kinship and are living; the decedent's children, for instance. If one of the decedent's children has died, but has left children of his or her own, then these grandchildren will divide the part of the estate that would have gone to the deceased child (in this case, their parent).

Intestacy statutes also provide for more distant relatives to divide the estate when there's no surviving spouse or issue. Kindred of half-blood are generally allowed to inherit the same share that they would receive if they were of full-blood. In some states, however, relatives of half-blood receive a one-half share, or receive property only if there are no full-blood relatives of the same degree. The statutes also provide for adopted children and children born after the decedent's death, who generally inherit in the same manner as children born while the person lived.

If no relatives eligible to inherit can be located, the entire estate escheats (or, reverts) to the state. There is a common misconception that whenever someone dies intestate, the estate is subject to escheat. This is simply not true, because all states have intestacy statutes in place to distribute the estate to surviving relatives. Escheat only occurs when there is no will and no family, or no family closely related enough to inherit the estate.

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