Testate Vs. Intestate Probate

Probate is a complicated legal process that takes place when someone passes away. The individual named as the personal representative of a deceased person’s estate and family members alike may have a hard time navigating the probate process. In general, there are two types of probate: testate probate and intestate probate. Each has its own characteristics and nuances that affect the distribution of assets of the decedent. When navigating the probate process becomes challenging, surviving family members can turn to legal counsel. The Tennessee estate planning and probate lawyers with Shepherd & Long, PC offer guidance to estate executors and administrators as well as surviving family members to ensure a smooth transfer of estate property. Book your free consultation with our team of lawyers to learn more about the probate process. Call (865) 982-8060 to get in touch today. Closeup of probate attorney reviewing estate documents.

What Is the Difference Between Testate and Intestate?

Essentially, a testate estate is one for which the deceased person leaves behind a Last Will and Testament providing instructions for the distribution of their assets. An intestate estate, on the other hand, is the estate left behind when someone dies without a will, and – instead of following the instructions contained in the will – the probate court has to determine the most appropriate way to distribute the decedent’s assets based on intestate succession laws.

What Happens in Testate Succession? 

Testate succession is usually easier for the executor of the estate named in the will or the court-appointed administrator to deal with. That is because the deceased person wrote down their wishes in the will and the administrator or personal representative can simply follow those wishes through the probate process. A will typically contains the following instructions:

  • The appointment of the executor of the estate
  • Final wishes, including plans for the funeral and burial
  • How the assets will be distributed among the heirs
  • Charitable contributions, if any

The same cannot be said about intestate succession, in which assets may be distributed in not in ways never intended by the deceased person. While testate estates would still need to go through probate, the probate process is typically less complicated and more straightforward than in intestate estates. That is because the will usually addresses many of the questions that may arise during the probate process.

How Is the Estate Distributed When a Person Dies Testate vs. Intestate?

Dying intestate means the deceased person did not write a will in their lifetime or their will was found to be invalid by the court. Dying testate means that the decedent left a will, and because the will is found by the probate court to be valid, the individual’s assets will be distributed according to the instructions contained in their will. The death of a person without a will triggers the laws of intestate succession, which differ from one state to another. 

The main problem with intestate probate is that it can leave the decedent’s loved ones unsatisfied with the final outcome, as there is nothing they can do to influence the probate court’s decision. With testate probate, on the other hand, the court distributes the estate according to the wishes of the deceased person, and interested parties have a chance to contest the terms of the will. That is why creating a will in one’s lifetime can help avoid conflicts in the family, reduce stress, and streamline the estate administration process as a whole. Consider speaking with a probate lawyer at Shepherd & Long, PC to learn more about how the estate is distributed in testate vs. intestate probate. 

Tennessee’s Intestate Succession Law

In Tennessee, how one’s assets will be distributed after their death depends heavily on the deceased person’s marital status because a surviving spouse will inherit at least one-third of the estate. From marital status, in the absence of a valid will the distribution of estate assets will be determined by degree of kinship, which as Cornell Law School’s Legal Information Institute explains is the closeness or distance of legally recognized familial relationship. The general rules of Tennessee’s intestate succession law include:

  • Surviving spouse, no issue: According to the Code of Tennessee § 31-2-104, if the decedent is survived by a spouse, but leaves behind no children, then the spouse shall inherit the entire intestate estate.
  • Surviving spouse, with issue: If an individual dies intestate and leaves behind both “issue” (one or more children) and a surviving spouse, then the surviving spouse will inherit either one-third of the estate or the same share as each of the decedent’s children, whichever is greater. 
  • With issue, no surviving spouse: If an individual dies intestate, with issue but unmarried at the time of death, then the estate will be distributed equally among the children, assuming all children share an equal degree of kinship to the decedent. If the children vary in their degree of kinship to the decedent (as sometimes happens in “blended” families), then the children will inherit shares of the state allocated by representation.
  • Without issue, no surviving spouse: If an individual dies intestate and leaves behind neither spouse nor offspring, then the estate will be divided equally between the decedent’s parents, if both survive, or given to the sole surviving parent, if only one survives. 
  • Without issue, no surviving spouse, no parents: If an individual dies intestate without spouse, children, or any surviving parent, then the estate will be distributed among surviving siblings and the issue of deceased siblings by representation. 
  • Without issue, unmarried, no parents, no siblings or issue of siblings: If an individual dies intestate and leaves behind no surviving parents, neither spouse nor children, and no siblings nor any issue of siblings, but one or more grandparents on either side survive, then the estate will be divided in half, and half will be allocated to each set of grandparents. If one side has no grandparents surviving, then half of the estate will be distributed among the surviving relatives on that side according to degree of kinship, beginning with the aunts and uncles of the deceased. 

Intestate succession law may seem complicated at first glance. An experienced probate lawyer can provide skilled representation and advocacy throughout the probate process to help families settle the estates of their deceased loved ones. 

What Does Testate Heirs Mean?

In the process of determining the rightful heirs, the intricate matter of inheritance boils down to the “intestacy” laws of each state. Determining inheritance may be contingent upon either the state of residency of the deceased or the state where their tangible assets were located upon their death. In some cases, both of these factors may come into play, which can further complicate matters. 

Additionally, it is vital to determine whether potential beneficiaries derive their rights from being mentioned in a will (testate heirs) or as surviving relatives by blood or marriage in the absence of a will (intestate heirs). One point that often confuses individuals attempting to navigate the process of probate a loved one’s estate is the distinction between beneficiaries (people or entities who will receive assets from the decedent’s estate, usually named in the will) and heirs (individuals entitled to a share of the estate under the intestacy laws of Tennessee). Being named as a beneficiary in a will does not necessarily guarantee heirship, and vice versa. Because a testator can name anyone as a beneficiary, but the heirs of an intestate estate are determined by their degree of kinship to the deceased, not all beneficiaries are automatically considered heirs.

Get the Guidance You Need

If you have any questions about testate probate or intestate probate, get your questions answered by the experienced Tennessee estate and probate lawyers with Shepherd & Long, PC. We strive to be responsive to the needs of our clients in Maryville, TN and the Blount County area. Our lawyers can play an essential role in the probate process by assisting and advising clients in settling affairs for a deceased person. Request a free case evaluation today by calling (865) 982-8060.