What Is the Difference Between Testate and Intestate?

These words don’t usually come up in conversation, but if you have recently been involved in dealing with a loved one’s estate, you may have heard the words “testate” and “intestate” and wondered what they mean. They sound very similar, but they mean the exact opposite—and the difference between testate and intestate could be important to your family.

What’s the Difference Between Testate and Intestate?

Simply put, testate means “with a will,” and intestate means “without a will.” When someone dies testate, it means that their estate will be distributed according to the terms of their will. When someone dies intestate, their estate will be distributed according to Michigan laws of intestate succession.

In the absence of the direction that comes from a will, there needs to be some guidance about how a deceased person’s estate will be distributed. Every state has intestacy laws in place that try to approximate what most people would do if they had made a will. In general, the estate would go to the closest relatives, i.e. spouse and children.

If there is no spouse and no children, then grandchildren, parents, or siblings might inherit from the deceased person (known legally as “the decedent”). If there are no close relatives, then more distant relatives, some of whom may not have even known the decedent, would take from the estate.

Right now, you may be asking yourself if you really need a will, if the law of intestate succession would distribute your estate pretty much as you would want. Why go to the trouble and expense of making a will? Actually, there are a lot of reasons.

The Difference Between Testate and Intestate: Why it Matters

Because intestacy laws are intended to distribute an estate as most people would want, they often don’t get things exactly right for a particular family’s unique needs. Let’s say you are survived only by your spouse and one parent from whom you have been estranged for years. You intend for your spouse to inherit your entire estate. But under Michigan law, your spouse would take the first $150,000 from your estate, plus ¾ of the remainder, with the remaining ¼ going to your parent. Intestacy can mean that someone you didn’t intend to leave anything to will receive a substantial portion of your estate.

Then there’s the reality that an estate isn’t like a pie that is straightforward to divide. Making the required distributions can mean that it’s necessary to liquidate assets so that all heirs can receive their fair share. That places a lot of stress on the person in charge of administering the estate, especially when they are grieving.

And who is the person in charge of administering the estate? If someone dies testate, the person they name as executor in their will should be appointed as personal representative of the estate (unless that person is unavailable or unsuitable for some reason). If someone dies intestate, a personal representative—usually a close relative—will be appointed by the court. Sometimes that’s not a problem. Other times, the court chooses someone the decedent would not have wanted, or two of the decedent’s family members argue over who should be appointed. These outcomes can easily be avoided by creating an estate plan that includes a will.

If you have minor children, it is even more important to have a will. One thing that you can do in a will is to name a guardian for your child in the event that you and their other parent should pass away. If you were to die intestate, the probate court would appoint someone to serve as your child’s guardian. As with the appointment of a personal representative of your estate, the result could be the appointment of someone you wouldn’t have chosen, or a battle between family members.

But even if you don’t have minor children or complicated family dynamics, there is still good reason to avoid dying intestate. Making a will allows you to state your wishes and gives your loved ones the chance to honor them. At a time when your family is grieving, that guidance and clarity is priceless.

Avoiding Intestacy: Talk to an Estate Planning Attorney

The bottom line is this: the financial investment in making a will is relatively small compared to the potential consequences of not making one. Think of it as a down payment on your family’s future. By making a will, you can save your family stress and uncertainty, not to mention legal and court fees. Perhaps most importantly, you will minimize the risk of disputes that could cause permanent damage to family relationships.

To learn more about the difference between testate and intestate estates, get help with probate of a loved one’s estate, or to speak to an attorney about creating an estate plan, contact Suzanne R. Fanning PLLC to schedule a consultation.