Which State's Intestacy Rules Apply

Intestacy is often described as the state writing a will for someone who did not. Where an estate touches two states, two states write it, each for the part it controls, and the two documents are not consistent with one another.

The two rules

Personal property follows the domicile. Accounts, investments, vehicles and possessions are distributed under the intestacy law of the state where the decedent was domiciled at death, wherever they are held.

Real property follows the situs. Land is distributed under the intestacy law of the state where it is located, for the reasons set out in why land follows the state it sits in.

So one estate can be divided twice. On different fractions, among the same people, under two statutes that were never written to work together.

Both proceedings are needed. The primary case at the domicile and an ancillary one where land sits, as described in when ancillary administration is required.

And domicile is the first question. Because it selects the law for the larger part of most estates.

Where the schemes differ

The surviving spouse's share. Ranging from the entire estate to a fixed sum plus a fraction, with the balance to descendants, and varying with the family structure.

Children of a previous relationship. Nearly every state reduces the spousal share where they exist, and the reductions are not uniform.

Representation among descendants. Per stirpes, per capita at each generation, and modified systems produce different results once a generation has been affected by a death.

Parents and collateral relatives. Whether parents take before siblings, how far out the search extends, and when the estate escheats to the state.

And the status of particular relationships. Adopted children, children born outside marriage, stepchildren and half-blood siblings are treated consistently in outline and differently in detail.

Establishing domicile

Presence plus intention to remain. The standard test, straightforward for most people and genuinely contested for some.

The contested cases are predictable. Two homes with time divided between them, a move to a care facility in another state, or a relocation begun and not completed.

The evidence is documentary. Voter registration, driver's license, tax filings, address of record, where medical care was received and where the person said they lived.

The stakes are the whole personal estate. A change in the answer redirects every account and investment to a different distribution scheme.

And the same tests appear in tax disputes. The analysis mirrors the one in what a domicile audit examines, for different purposes.

Administering an intestate estate

Someone must be appointed. With priority set by statute rather than by nomination, generally the spouse first, then other heirs.

Heirs must be identified formally. Which requires a family history, and occasionally a genealogical search where relatives are distant or unknown.

A local appointment may be needed for land. Subject to the requirements in what a state demands of an out-of-state executor.

Creditor processes run in both states. On separate timetables, as set out in creditor claims presented in two states.

And co-ownership is the usual outcome. Land passing to several heirs in undivided shares creates a shared asset that somebody eventually has to resolve.

What intestacy cannot do

It cannot recognize anyone unmarried. A long-term partner receives nothing under any state's scheme, however long the relationship.

It cannot make provision for need. Shares are fixed by relationship, not by dependence, circumstance or what the decedent would have wanted.

It cannot appoint a guardian. Which for a parent of minor children is usually the most important thing a will does.

It cannot avoid a second proceeding. Out-of-state land requires a local case, which a trust or a beneficiary deed would have prevented.

And it cannot be adjusted afterward. The scheme applies as written, and family agreements to redistribute have their own tax and creditor consequences.

The practical picture that emerges is of an outcome nobody chose. The spouse receives one fraction of the accounts and a different fraction of the land. Children from a first marriage take shares that vary by state. A holiday home ends up owned in undivided portions by four people who disagree about whether to sell it. None of that reflects a decision; it reflects two statutes operating on assets that happened to be in different places.

What makes it worth writing about is that it is entirely avoidable, and the avoidance is cheap. A will directs the whole estate, names a guardian, appoints a representative and removes the domicile question from most of the analysis. Adding a trust or a beneficiary deed for out-of-state land removes the second proceeding as well.

For families already administering an intestate estate, the sequence is fixed. Establish domicile first, because it governs the larger part. Identify every parcel of real property and the state it sits in. Determine the heirs under each applicable scheme separately rather than assuming a single division. Open the proceedings that are actually required, checking first whether a small-estate route removes any of them. And expect the fractions to differ between asset classes, because that is what the two rules produce.

The final observation is one that families find harder than the law. Intestacy divides property among relatives by formula, and formulas take no account of who provided care, who was closest, or what anybody had been told to expect. Those disappointments are real and they are not legal problems, which is why the most useful thing anyone can do about intestacy is to make sure it never applies.

It is also worth being clear about what intestacy does not reach, because families frequently assume the statutes govern more than they do. Assets with a beneficiary designation — retirement accounts, life insurance, payable-on-death accounts — pass to the named beneficiary and never enter the intestate estate at all. Property held jointly with a right of survivorship passes to the survivor by operation of law. Anything already held in a trust is governed by the trust instrument. In many modern estates these categories hold the majority of the value, which means the intestacy scheme divides only what is left, and the result can be far from what an even-handed division would produce.

That interaction is the reason a stale beneficiary designation is so consequential in an intestate estate. There is no will to signal a different intention and nothing to correct the outcome, so a form completed decades ago and never revisited simply governs. Reviewing designations is a five-minute exercise, and in an estate without a will it does more work than any other single step available for keeping an estate's outcome close to what the person would have chosen.