What are the Rules of Intestacy?

What are the Rules of Intestacy?

November 26, 2018

Tanko Law Montana

If a person passes away without a valid will, all the assets in their estate must be distributed to beneficiaries according to legal guidelines known as the rules of intestacy. In these cases, only married or civil partners, along with some other relatives, are able to inherit intestate assets.


Intestacy can also occur if someone has a will that has been deemed invalid according to the law. In this case, the court will follow the rules of intestacy to distribute the property, which may or may not be according to the wishes expressed by the decedent in the will.


If you’re wondering what happens if you die without an estate plan, learn more about the rules of intestacy and find out how to ensure your family is protected in the event of your death.


1990 Uniform Probate Code


The 1990 Uniform Probate Code serves as a general guideline for intestacy, but each state can have additional laws in place for how assets are distributed.


Under the 1990 Uniform Probate Code, the closest relatives inherit assets instead of distant relatives or friends designated by the decedent. Generally, this begins with the surviving partner, descendants, parents, descendants of the parents, such as siblings, nephews or nieces, grandparents and descendants of the grandparents, such as uncles, aunts and cousins. Children who were adopted are treated as biological children, provided the adoption is legal. If there are no legal descendants, the estate goes to the state by default, which is known as “escheats.”


Married Partners and Civil Partners


Under the rules of intestacy, married partners and civil partners may inherit the deceased spouse’s property if they are legally married or in a civil partnership at the time of death. If you’re divorced or the partnership has been ended at the time of death, however, the surviving spouse will not inherit any of the deceased spouse’s property. Partners who are informally separated may still inherit property, provided they’re not legally separated.


The surviving spouse inherits the entire estate if there are no surviving parents and all the surviving children are from both the decedent and the surviving spouse.


If the decedent’s parent or parents survive but there are no surviving children, the spouse inherits $200,000 of the estate, as well as three-quarters of the remaining assets.


If the decedent is survived by children who are also descendants of the surviving spouse and the decedent and the surviving spouse also has any surviving descendents who are not also descendents of the decedent, the surviving spouse inherits $100,000 of the estate, as well as one-half of the remaining assets.


Descendants and the Right of Representation


If a decedent leaves behind no surviving spouse, but has direct descendants, the descendants inherit the entire estate under the right of representation. The right of representation gives the descendants of the beneficiary who passed away the right to collect the property originally intended to go to another decedent, in this case, the surviving spouse.


Surviving Parents


If a decedent has no surviving spouse or descendants, all property is distributed to the decedent’s surviving parents equally. In the case of only one surviving parent, the entire estate goes to the sole surviving parent. This is another example of the right of representation, since the estate would originally be intended for the surviving spouse or surviving children, but none exist.


Other Relatives


In the case of a decedent with no surviving spouse, descendants or parents, the entire estate goes to the biological or legal siblings of the decedent. If there are no surviving siblings, the entire estate passes to the siblings’ children. If there are no children, the estate goes to the decedent’s grandparents or their descendants.


Net Estate


The entire estate left to the surviving descendants is the “net estate,” which is what’s remaining after all debt, taxes, protections and administrative costs are paid. Protections may include family allowances, homestead allowances and exempt allowances.


Jointly Owned Property


Jointly owned property comes in two forms: with rights of survivorship and without rights of survivorship.


Jointly owned property with rights of survivorship means that two or more individuals own the account or real estate together, so if one owner dies, the remaining owner fully owns the property. A special type of ownership with rights of survivorship between married couples is “tenancy by the entirety” in some states, while “community property” is another type of joint ownership in other states.


Jointly owned property without rights of survivorship means that two or more individuals own a percentage of the account or real estate together. Joint ownership without rights of survivorship is often referred to as owning the property as “tenants in common.”


In the case of intestacy, tenants in common property, or property without rights of survivorship, will go through court-supervised probate to determine the distribution among heirs. Nonprobate assets include property owned jointly with the rights of survivorship, including tenancy by the entirety and certain community property.


In some cases, property is “title by contract,” which means that the property has a beneficiary named on the title to receive the property after the owner’s death. This often means bank accounts or investments that have “transfer on death,” “payable on death” or “in trust for.” Life insurance, retirement accounts such as IRAs, 401(k)s and annuities, and life estates that have transfer on death or beneficiary deeds.


Get Estate Planning Help


With so many rules of intestacy, you can see why it’s so important to have a valid estate plan in place to protect your loved ones in the event of your death, especially if you have many qualified descendants and a lot of assets.



If you need help planning your estate, Tanko Law can help. We’ve been providing the best in probate services, estate planning, wills and trusts since 1995, so we’re sure we can offer you the best legal advice and services to ensure your loved ones are cared for after loss. Contact us today to schedule your consultation for your estate planning!

< Older Post Newer Post >

Talk to a Montana Estate Planning Attorney

Brian Tanko brings over 20 years of experience as an attorney, CPA, and Certified Fraud Examiner to every estate plan. Schedule a consultation to discuss your situation.

Latest Posts

Montana Trust Laws: What You Need to Know | Tanko Law

Montana Trust Laws: A Guide to the Montana Uniform Trust Code

By Tanko Law Montana • May 25, 2026
Creating or administering a trust in Montana? Learn the key statutes, trustee duties, tax rules, and common mistakes, from a Montana trust attorney.
Revocable vs Irrevocable Trust: Key Differences Explained

Revocable vs Irrevocable Trusts — Which One Is Right for You?

By Tanko Law Montana • May 22, 2026
Revocable vs irrevocable trust: Discover key differences, asset protection benefits, tax impact, and which trust is right for your Montana estate plan.

Do You Need a Lawyer to Start a Business in Montana?

By Tanko Law Montana • November 24, 2025
Starting a business in Montana is an exciting prospect, drawn by the state’s scenic vistas, expanding economy, and a culture that encourages entrepreneurship. From Bozeman’s tech scene to the rural revitalization of small towns, Montana’s business environment is ripe with opportunity. Naturally, this raises a crucial question for hopeful founders: Do you need a lawyer to start a business in Montana? The short answer is no—Montana law does not require entrepreneurs to hire an attorney. However, relying solely on a do-it-yourself approach can carry significant risks. Legal counsel often proves invaluable, ensuring your business is built on a solid legal foundation and helping you avoid costly missteps. The “Do-It-Yourself” Approach: Step-by-Step Guide Many entrepreneurs choose the DIY route, leveraging online resources and the state’s accessible filing systems. Here’s what the journey typically looks like: Choosing a Business Structure: Decide whether to operate as a sole proprietorship, LLC, corporation, or another entity. Each has different implications for liability, taxes, and management. Naming the Business: Select a unique name and verify its availability via the Montana Secretary of State before registering. Appointing a Registered Agent: Montana law requires every business to designate a resident agent who can accept legal documents. Filing Formation Documents: For an LLC, file Articles of Organization; for a corporation, file Articles of Incorporation—these can be submitted online. Obtaining an EIN: Secure an Employer Identification Number from the IRS for tax purposes and to open business bank accounts. Registering for Permits and Licenses: Depending on your industry and location, you may need state or local permits and licenses. DIY Resources make this process smoother: The Montana Secretary of State’s website features an easy-to-use online business portal. Free and paid templates exist for basic legal documents like operating agreements and bylaws. Business formation services (LegalZoom, ZenBusiness, etc.) offer step-by-step assistance for a fee, but these won’t provide personalized legal advice. The Hidden Dangers of Going Solo While Montana makes starting a business accessible, there are pitfalls if you proceed without professional legal guidance: Choosing the Wrong Business Structure: A mistaken selection can expose your personal assets to liability or result in unexpected tax bills. The stakes are even higher for partnerships or multi-member LLCs, where misunderstandings multiply. Legal Documentation Errors: Without a tailor-made operating agreement or bylaws, disputes among owners become more likely. Incomplete or incorrect filings can delay the start of your business or threaten its legal standing. Most importantly, you may unknowingly sign documents with significant and sometimes detrimental legal weight. Compliance Issues : Missing a single required license or failing to comply with Montana employment laws can lead to expensive fines, legal troubles, or even forced business closure. Overlooking trademark and copyright protections exposes you to intellectual property disputes down the road. The Value of an Attorney: Far More Than a Form-Filler An experienced Montana business attorney is more than just someone who files paperwork. They become a strategic partner who can: Guide You to the Right Structure : Attorneys analyze your business goals and recommend the right entity for liability protection and tax efficiency, explaining the long-term consequences of each option. Draft and Review Critical Documents: A lawyer crafts operating agreements or bylaws that reflect your business’s specific needs, making sure all paperwork aligns with state law and offers genuine protection. Proactively Manage Risk: From anticipating disputes to helping with contracts and lease agreements, legal counsel protects you from costly mistakes. As your business grows, ongoing legal advice helps you navigate changes in law, ownership, or structure. Conclusion While Montana’s pro-business climate makes DIY company formation tempting, skipping legal counsel is a gamble. Mistakes in the choice of structure, documentation, or compliance can jeopardize both your investment and personal assets. The cost of a lawyer may seem unnecessary up front, but it often saves much more by avoiding problems later. Ultimately, entrepreneurs should—at minimum—seek an initial consultation with a knowledgeable Montana business attorney. Understanding your unique risks and requirements before launching ensures your new venture is both successful and secure. If you’re looking for an expert Montana business attorney, contact Tanko Law !