What Happens when Someone in my Family Dies without a Will?
Dying without leaving a will is known as intestacy. Every state has its own laws that deal with who will take the decedent's property if there is no valid will. These state laws distinguish between total intestacy (when there is no valid will), and partial intestacy (when the will does not dispose of all the property).
Will my Spouse Automatically Receive Everything if I Don't Leave a Will?
Not necessarily. The amount that the surviving spouse inherits depends on your state's laws and who else survives. If the decedent leaves no children, the spouse might get everything, or might share with the decedent's parents. If the decedent left children, the spouse will often share with them, taking half if there is one child, and one-third if there is more than one child. Some states give the spouse a specific amount, and divide the rest between the children. In other states, the spouse gets everything, and the children must rely on the surviving parent as a conduit, leaving them anything that remains at her death.
What if the Surviving Spouse is Not my Natural Parent?
When the surviving spouse is not the parent of the decedent's children, then that surviving spouse may be less likely to favor those children, and be less reliable as a conduit to the decedent's inheritance. Many states distinguish between a single-marriage situation, where the surviving spouse is the parent of all of the decedent's children, and multi-marriage situations. You should speak with an attorney to determine how your state deals with surviving spouses who are your step-parents.
Who Will Inherit?
Every state has unique laws on how the estate will be distributed when there is no will. Usually, the spouse has the first rights. After the spouse, the descendants are usually next. Most states follow each child's line down until there is a survivor. If the decedent left no children, the next to take property are usually the decedent's parents. If the decedent?s parents (and grandparents) are no longer alive, the next to take property are the decedent?s aunts, uncles and cousins.
In the event that the decedent didn't have any close family, many laws determine that the person who will inherit is the next of kin. Usually the next of kin is determined by who is closest to the decedent on the family tree. In the event that there are no eligible family members, the property of the decedent will most likely go to the state.
How Much Will Each Person Inherit?
The per capita approach, followed by some states, counts all the heirs of the decedent and gives each heir an equal share.
The per stirpes approach, followed by many other states, divides the estate differently. If the decedent left 3 children, each would take an equal share. But, if one of those children (X) is no longer alive, then the one-third share of X would be distributed to X's heirs.
Does an Adopted Child Inherit the Same Amount as a Biological Child?
There may be questions as to whether the adopted person (the adoptee) can inherit from the adoptee's genetic parents and the adoptee's adoptive parents. In general, many states remove the adoptee from the families of the genetic parents and consider the adoptee as part of the family of the adoptive parents. Some states place the child in both families for inheritance purposes. Some states allow the adopted child to inherit from both the genetic and adoptive parents, but cut off the genetic parents from inheriting from the child.
What If I Was Adopted by my Step-Parent?
There may be special rules in your state if you were adopted by your step-parent. Some states treat step-parent adoption as having no effect on the relationship of the adoptee with their genetic parents.
Do I Need a Lawyer?
If you think you may be entitled to inherit from someone who did not leave a will, you should consult with an attorney. An experienced lawyer can inform you of your rights as well as preserve any possible legal remedies you may have.
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Last Modified: 11-22-2010 12:21 PM PST