When a person dies without having a valid will in place, his or her property passes by what is called “intestate succession” to heirs according to state law. In other words, if you don’t have a will, the state will make one for you. The purpose of intestate succession statutes is to distribute the decedent’s wealth in a manner that closely represents how the average person would have designed his or her estate plan, had that person had a will. However, this default can differ dramatically from what the person really would have wanted. Even where it is known what the person intended, no exceptions are made where no valid will exists.
Nor are there any exceptions made based on need or special circumstances.
The Uniform Probate Code
The Uniform Probate Code (the Code) serves as the starting point for many states’ laws. Nevertheless, the laws of different states can vary greatly from each other and from the Code itself. However, the Code represents the best reference for a general discussion. Under the Code, close relatives take property instead of distant relatives. The classes of relatives whose members receive property under the Code include the decedent’s surviving spouse, descendants (children, grandchildren, etc.), parents, descendants of decedent’s parents (siblings, nieces and nephews), grandparents, and descendants of grandparents (aunts and uncles and cousins). Adopted descendants are treated the same as biological descendants.
Share Of Surviving Spouse
Under the Code, a surviving spouse is either entitled to the entire estate (after expenses and taxes of the decedent) or a substantial part of it. For example:
• The surviving spouse is entitled to the entire net estate if the decedent is also survived by children who are all children of the decedent and the surviving spouse.
• The surviving spouse is also entitled to the entire net estate if the decedent is not survived by descendants and parents.
• If parents survive but no descendants survive, a surviving spouse takes the first $200,000 of the net estate plus three-fourths of anything exceeding that amount.
• If the decedent is survived by descendants who are also the descendants of the surviving spouse, and by descendants who are not descendants of the surviving spouse, the surviving spouse takes the first $150,000 of the net estate plus one-half of anything exceeding that amount.
• If the decedent is not survived by any descendants who are also descendant of the surviving spouse but is survived by descendants who are not descendants of the surviving spouse, the surviving spouse takes the first $100,000 of the net estate plus one-half of anything exceeding that amount.
Share of Descendants
Under the Code, if no spouse survives but descendants of the decedent survive, the descendants take the entire net estate by “right of representation.”
Share of Parents
Under the Code, if a decedent is not survived by a spouse or descendants, the entire net estate passes to the decedent’s parents equally or, if only one survives, to the survivor.
Share of Other Relatives
Under the Code, if a decedent is not survived by a spouse, descendants, or parents, the entire net estate passes to the decedent’s parent’s descendants (siblings of the decedent). If there are no siblings or descendants of siblings, the net estate goes to the decedent’s grandparents or their descendants.
The “Net Estate” is the amount left for distribution to heirs after all debts, family protections, taxes, and administrative expenses have been paid. “Family protections” include homestead allowances, family allowances, and exempt property allowances.
Feeling overwhelmed by the probate code? Afraid of the consequences of you or a loved one dying without a will? Concerned that an unpopular relative might get an unfair share of the assets? These are all valid concerns and ones that can be addressed by a legal professional. Get peace of mind by contacting an estate planning attorney to help you with your estate planning.
If you’re settling the estate of a deceased person who hasn’t left a will, you probably have more than a few questions about how the estate will be distributed. First, it’s important to understand that many kinds of assets aren’t passed by will, such as: life insurance proceeds
• real estate, bank accounts, and other assets held in joint tenancy, tenancy by the entirety, or community property with right of survivorship
• property held in a living trust
• funds in an IRA, 401(k), or retirement plan for which a beneficiary was named
• funds in a payable-on-death (POD) bank account
• stocks or other securities held in a transfer-on-death (TOD) account, and
• real estate or vehicles held with a transfer-on-death (TOD) deed or title document.
To find out who inherits these types of property, you’ll need to locate the documents in which the co-ownership or beneficiary designation was established. To find out who inherits other assets generally, solely owned property for which no beneficiary has been formally named, such as a house, you’ll need to consult state law. Every state has “intestate succession” laws that parcel out property to the deceased person’s closest relatives.
Who’s in Charge?
When there is no will to name an executor, state law provides a list of people who are eligible to fill the role. If a probate court proceeding is necessary, the court will choose someone based on that priority list.
Most states make the surviving spouse or registered domestic partner, if any, the first choice. Adult children are usually next on the list, followed by other family members. Every state has laws that direct what happens to property when someone dies without a valid will and the property was not left in some other way (such as in a living trust). Generally, only spouses, registered domestic partners, and blood relatives inherit under intestate succession laws; unmarried partners, friends, and charities get nothing. If the deceased person was married, the surviving spouse usually gets the largest share. If there are no children, the surviving spouse often receives all the property. More distant relatives inherit only if there is no surviving spouse and if there are no children. In the rare event that no relatives can be found, the state takes the assets. All states have rules that bar certain people from inheriting if they behaved badly toward the deceased person. For example, someone who criminally caused the death of the deceased person is almost never allowed to profit from the death. And, in many states, a parent who abandoned or refused to support a child, or committed certain crimes against a child, cannot inherit from that child.
Understanding Key Terms in Intestate Succession
Intestate succession laws refer to groups of people such as “children” and “issue.” You may think you know just what the term “children” means, but don’t be too sure until you check your state’s laws. It’s not always obvious.
To qualify as a surviving spouse, the survivor must have been legally married to the deceased person at the time of death. Usually, it’s clear who is and isn’t married. But not always.
• Legal separation or pending divorce. If the couple had separated before one spouse died, or if one person had begun divorce proceedings, a judge may have to rule on whether or not the surviving member of the couple is considered a surviving spouse.
• Common-law marriage. A few states allow common-law marriages (in which a man and a woman who never went through a marriage ceremony can be considered legally married under certain circumstances). Generally, to create a common-law marriage, the couple must live together, intend to be married, and present themselves to the world as married. Check your state’s law to see whether your state recognizes common-law marriage and, if so, under what circumstances.
• Same-sex couples. After a long period of uncertainty, same-sex marriage is now legal in every U.S. state. Married same-sex spouses also have the same rights and responsibilities as all legally married people. This includes the rights that come with qualifying as a surviving spouse. In contrast, depending on the state, couples who are registered domestic partners or civil union partners (and not married) may not have all of the rights and responsibilities as married people. Further, some states automatically converted registered domestic partnerships or civil union partnerships to marriages. So whether you qualify as a surviving spouse will depend on the legal status of your relationship and your state’s law. If you have any questions about the legal status of your relationship in your state, get help from an attorney who is knowledgeable about this area of law.
Children and Issue
The simple term “children” can mean different things to different people and under different laws. Many state statutes use the term “issue” to describe who should inherit in the absence of a will, meaning direct descendants of the deceased person (children, grandchildren, and so on).
• Adopted children. In all states, in the absence of a will or other estate plan, legally adopted children inherit from their adoptive parents just as biological children do.
• Stepchildren. Most states do not include stepchildren (children of the spouse of the deceased person who were never legally adopted by the deceased person) in their definition of children for purposes of inheritance. In a few states, however, it may depend on the circumstances of the relationship.
• Foster children. Foster children do not normally inherit as “children” of the foster parents.
• Children adopted by an unrelated adult or family. In most states, placing a child for adoption severs the legal tie between the child and the birth parents. The child can no longer inherit from the birth parents under intestate succession laws, and the parents can no longer inherit from the child.
• Children adopted by a stepparent. A child who is adopted by a stepparent might still inherit from the biological parents; it depends on state law.
• Children born after the parent’s death. A child conceived before a parent’s death but born after the death (sometimes referred to as a “posthumous” child) inherits under intestate succession laws just as do children born during the parent’s life.
• Children born outside marriage. A child born to unmarried parents always inherits from his or her birth mother, unless an unrelated family adopts the child. If the parents were never married, usually the child must show some kind of proof to inherit from the father.
Brothers and Sisters
If an intestate succession law includes the deceased person’s “sisters and brothers” or “siblings” as heirs, this group generally includes half-siblings and may even include half-siblings who were adopted out of the family.
If an Heir Has Died
Obviously, an heir who has died can’t inherit. But if the heir was a close relative, such as a child of the deceased person, his or her offspring may be entitled to take some or all of what their parent would have received. Figuring out whether this is the case can be tricky, but it’s essential that you do so before distributing assets.
To inherit under intestate succession laws, an heir may have to live a certain amount of time longer than the deceased person. In many states, the required period is 120 hours, or five days. In some states, however, an heir need only outlive the deceased person by any period of time theoretically, one second would do. Many states have adopted a law (the Uniform Simultaneous Death Act) that says for purposes of inheritance, each person is treated as if he had survived the other.
Rights of a Deceased Heir’s Descendants
Intestacy laws often provide that if one of a group of heirs has died, his or her children inherit their parent’s share. In other words, they take the place of the parent. According to this concept (called the “right of representation”), children (or, in some cases, grandchildren) stand in the place of their deceased parent when it comes to inheritance. Figuring out exactly who should inherit can be complicated depending on state law.
Taking Care of Minor Children
Parents who have young children and who make a will typically name someone to serve as the personal guardian of their children. But if a guardian is needed and there’s no will, how does a judge know whom to appoint? In that situation, the court will appoint a guardian. The judge will gather as much information as possible about the children, their family circumstances, and the deceased parents’ wishes and try to make a good decision. The primary rule is that the judge must always act in the best interests of the children.
Free Initial Consultation with Lawyer
It’s not a matter of if, it’s a matter of when. Legal problems come to everyone. Whether it’s your son who gets in a car wreck, your uncle who loses his job and needs to file for bankruptcy, your sister’s brother who’s getting divorced, or a grandparent that passes away without a will -all of us have legal issues and questions that arise. So when you have a law question, call Ascent Law for your free consultation (801) 676-5506. We want to help you!
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