Testate vs Intestate: How Title Moves at Death
Succession shares, spousal and homestead protections, probate procedure, and the time limits for creditor claims are written state by state and amended regularly. Treat the rules in your jurisdiction's statutes and your commission's materials as controlling over any national summary, including this one.
Two words, one fork in the road. When an owner dies, real property either passes under a will the courts accept as valid, or it passes under the succession statute the state supplies when no valid will exists. The first situation is described as testate; the second as intestate.
The vocabulary is easy. What items actually test is the consequence: who receives the property, who is authorized to sign the instrument that conveys it, and which transfers bypass the whole question because they never entered the estate at all.
The Two Words, Defined
An owner who dies leaving a will the probate court accepts as valid has died testate. The document names who takes the real property. Under traditional terminology a gift of real property under a will is a devise and the recipient is a devisee, while a gift of personal property is a bequest or legacy; many modern statutes have collapsed that distinction, but exam items still use the older words.
An owner who dies with no will at all, or whose will the court refuses to admit, has died intestate. Nothing is left undecided. The legislature has already written a default order of distribution, usually called descent and distribution or intestate succession, and the estate is distributed down that order regardless of what anyone believes the owner intended.
A third case sits between them. If a valid will exists but fails to dispose of everything the owner held, the estate is partially intestate: the will governs what it covers, and the succession statute picks up whatever it missed. Items that mention an after-acquired parcel the will never mentions are usually pointing at this.
What Actually Happens to the Property
In both routes the estate normally opens in probate, and in both routes the real property is answerable for debts, taxes and the expenses of administration before anyone receives a clear interest. Heirs and devisees take what is left, not what the gross estate looked like on the date of death.
The difference candidates are asked about most often is who holds the authority to act. Where there is a will, the court issues letters to the personal representative the will names, historically called the executor or executrix. Where there is none, the court appoints one under a statutory priority list, historically called the administrator or administratrix. Either way the conveyance out of the estate is signed in that representative capacity, not by the heirs individually, and the instrument is commonly an executor's deed or administrator's deed rather than a general warranty deed.
If the succession statute is followed all the way down and no qualifying relative can be located, the property escheats to the state. Escheat is the endpoint of intestacy, not a separate penalty, and it is rare precisely because the statutory ladder reaches very far out on the family tree first.
Transfers That Never Reach the Will Question
A large share of missed items are missed because the candidate answered the testate-or-intestate question when the property in the fact pattern never became part of the probate estate. Check for these first.
Joint tenancy with right of survivorship. The surviving joint tenant takes by operation of law at the moment of death. A will that purports to devise the deceased tenant's interest has nothing to operate on.
Tenancy by the entirety. Where a state recognizes it for married owners, survivorship works the same way and the same result follows.
A life estate that ends at death. The remainderman's interest was created by the earlier deed. Nothing passes through the estate because the measuring life simply expired.
Property held in a trust created during life. Title sits in the trustee, so the trust instrument, not the will and not the succession statute, directs what happens next.
An interest already conveyed by a recorded deed delivered during the owner's lifetime. Delivery and acceptance completed the transfer; the will cannot reclaim it.
Tenancy in common, by contrast, does pass through the estate. A co-tenant's undivided share is devisable and inheritable, which is why it is the ownership form most often paired with these items.
Why It Shows Up in Title and Closing Questions
Death in the chain of title is a defect risk, which is why this topic appears well outside the ownership chapter. A title examiner reviewing a chain that runs through an estate is checking whether the probate was properly opened, whether the representative had authority to convey, whether required parties received notice, and whether creditor and tax claims were cleared.
Intestate chains tend to attract more scrutiny simply because the correct list of takers is derived from the statute and from proof of family relationships rather than read off a document. Missing heirs, a later-discovered will, and an unknown child are standard textbook examples of claims that surface after closing, and they are among the classic reasons an owner's title policy exists.
That is the practical link to keep in mind. Testate and intestate are not trivia about wills; they describe two different evidentiary records that a buyer, a lender and an insurer have to accept before a marketable title can pass.
How to Work an Item on This Topic
The distinction is simple enough that most losses are procedural. Run the fact pattern through these steps in order.
Identify the ownership form before anything else. If survivorship applies, stop; the will and the statute are both irrelevant to that parcel.
Ask whether a valid will was admitted. The word valid is doing real work: an unsigned, revoked or rejected document leaves the owner intestate even though a document exists.
Match the vocabulary to the route. Will present means devisee, executor and executor's deed. No will means heir, administrator and administrator's deed.
Watch for a partial gap. A will that covers some property and misses other property produces both answers at once, and the item is usually testing whether you noticed.
Do not import a specific share. Fractions for a surviving spouse, children or parents differ by jurisdiction, so choose the answer that names the correct governing rule rather than the one that recites a percentage.
Separate the concepts of who receives and who conveys. Many distractors are correct about the taker and wrong about the signer, or the reverse.
Questions Candidates Ask About These Two Terms
Can a will override a survivorship deed?
No. Survivorship operates at the instant of death, before the will has any effect, so the surviving co-owner takes regardless of what the document says. An owner who wants a will to control that parcel has to change the form of ownership during life.
Does intestate property go to the government?
Only after the statutory list of relatives is exhausted. The succession statute works outward through spouse, descendants, parents, siblings and more distant kin; escheat to the state is the last step, not the first.
Is probate required in both situations?
Some form of administration is typical either way, because someone must be authorized to pay claims and sign the conveyance. Many states also provide simplified or small-estate procedures. Availability and the conditions attached are set locally, so verify them in your state's materials.
What is the difference between an heir and a devisee?
An heir takes under the intestate succession statute. A devisee takes real property named in an accepted will. The two words are not interchangeable on an exam even though ordinary speech treats them as synonyms.
How does this affect a buyer purchasing from an estate?
The buyer is relying on the representative's authority and on the completeness of the probate record. Expect a conveyance in a representative capacity, expect limited warranties in that deed, and expect the title work to examine the estate file rather than a single recorded instrument.
What is the fastest way to lock in the distinction?
Attach each word to its document. Testate points at a will the court accepted; intestate points at a statute the legislature wrote. Then add the signer, because that is the part items most often test: a named executor in the first case, an appointed administrator in the second.
Where to go next: Related Pages
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