Intestacy is the state of having died without a valid will. A person who has died without a will is said to have died “intestate,” and the probate assets of such a person will be distributed according to the laws of descent and distribution in intestacy, which is determined by a state statute.1
An intestate decedent’s remaining probate assets, after payment of creditor claims and other expenses of the estate, are distributed to his or her heirs instead of to beneficiaries that he or she has chosen. The decedent’s heirs, and the share of assets that each of them will receive, are determined according to strict statutory rules. One may think of the laws of descent and distribution in intestacy as a sort of default will that the State of Washington automatically provides for free to its residents who do not make a will of their own.
Under the laws of descent and distribution in intestacy, the following rules apply for determining a decedent’s heirs and the share of the decedent’s probate assets that each heir will receive:
- If the decedent has a surviving spouse or state registered domestic partner, he or she will receive all of the decedent’s community property, plus:
- one-half of the decedent’s separate property if the decedent has surviving issue; OR
- three-fourths of the decedent’s separate property if the decedent has no surviving issue, but does have at least one surviving parent or surviving issue of a parent; OR
- all of the decedent’s separate property if the decedent has no surviving issue, nor surviving parent, nor surviving issue of a parent.
- All of the decedent’s probate assets that are not distributed to the decedent’s surviving spouse or domestic partner are distributed as follows:
- to the decedent’s surviving issue, if any, by right of representation; OR
- if the decedent has no surviving issue, then to the decedent’s surviving parent or parents; OR
- if the decedent has no surviving issue and no surviving parents, then to the issue of the decedent’s parents by right of representation; OR
- if the decedent has no surviving issue and no surviving parents, and the parents have no surviving issue, then to the decedent’s surviving grandparents, and if the decedent has both maternal and paternal grandparents who survive, then one-half to the decedent’s surviving paternal grandparents, and one-half to the decedent’s surviving maternal grandparents; OR
- if the decedent has no surviving issue, no surviving parents, no surviving grandparents, and the parents have no surviving issue, then, taken as a group, to the issue of the decedent’s maternal and paternal grandparents by right of representation.
As you can imagine, there are many possible variations of who a decedent’s heirs might be depending on the specific circumstances of the decedent’s family structure and who among the decedent’s family has survived.
In the very unlikely scenario that there is no person among those listed above who survives and can be the decedent’s heir, the decedent’s probate assets may become escheat property and belong to the State of Washington.
While a person who has made a will might expect these rules never to apply, it is possible for partial intestacy to occur. A scenario where this might happen is if an individual clause in an otherwise valid will is determined to be invalid during the probate process, or if the testator failed to provide for the distribution of certain property in his or her will (for example, by failing to include a gift of the residue). In such a case, the property the will failed to distribute would pass under the laws of descent and distribution in intestacy.