“Intestate” versus “Testate” Estate Administration

If a person dies with a Last Will and Testament (or a Will) the law tells us that such a person died “testate”.

Conversely, if a person dies without a Last Will and Testament, the law tells us that such a person died “intestate”.

The way Minnesota probate law treats those who died “testate” versus “intestate” is very different.  Foremost, if a person has a Will upon their death, the probate court will honor the wishes of the deceased person (“decedent”).  If the decedent wanted a home to go to his or her spouse, then the court will honor that.  If the decedent wanted his or her bank account to be split between the children of the decedent, the court will honor that provision of a Will.  If a decedent purposefully disinherits one of his or her children, the court will also honor that wish – as long as it is contained in a valid Will.

If a person dies “intestate”, Minnesota law has very specific provisions about how a decedent’s estate will “pass” upon that person’s death.  Specifically, Minnesota statutes tells us that the surviving spouse, if there was one, will get a portion of the estate depending upon how log he or she was married to the decedent.  For instance, the below chart lays out how a surviving spouse is paid from an “intestate” estate:

The Spousal Elective Share in a Minnesota Probate Administration

Furthermore, the surviving spouse of an “intestate” estate is entitle to what is commonly referred to as an “elective share” – meaning the surviving spouse can “elect” to keep that money or elect not to.  This would also be a good point to state that live-in girlfriends or boyfriends are not entitled to any money – or any portion of a decedent’s estate – if they did not marry the decedent.  The probate lawyers at Flanders Law Firm have seen many instances in which the boyfriend or girlfriend of a decedent received nothing from an estate and were forced to move out of the home he or she shared for many years with the decedent.

If a person dies “intestate”, there is also a table of heirs which dictates who receives what share of the estate.  Below is a listing of the Minnesota table of heirs as provided by Minn. Stat. 524.2-103.

(1) to the decedent’s descendants by representation;

(2) if there is no surviving descendant, to the decedent’s parents equally if both survive, or to the surviving parent;

(3) if there is no surviving descendant or parent, to the descendants of the decedent’s parents or either of them by representation;

(4) if there is no surviving descendant, parent, or descendant of a parent, but the decedent is survived by one or more grandparents or descendants of grandparents, half of the estate passes to the decedent’s paternal grandparents equally if both survive, or to the surviving paternal grandparent, or to the descendants of the decedent’s paternal grandparents or either of them if both are deceased, the descendants taking by representation; and the other half passes to the decedent’s maternal relatives in the same manner; but if there is no surviving grandparent or descendant of a grandparent on either the paternal or the maternal side, the entire estate passes to the decedent’s relatives on the other side in the same manner as the half;

(5) if there is no surviving descendant, parent, descendant of a parent, grandparent, or descendant of a grandparent, to the next of kin in equal degree, except that when there are two or more collateral kindred in equal degree claiming through different ancestors, those who claim through the nearest ancestor shall take to the exclusion of those claiming through an ancestor more remote.

As you can see, the difference between dying “intestate” versues “testate” is very significant.  This difference also explains why estate planning is so important.

Free Initial Consultations

Contact the Flanders Law Firm today to talk to a Dakota County, Minnesota probate lawyer.  The firm offers free estate planning consultations to all potential clients. Call (612) 424-0398.