The legal term for dying without a will is intestate succession. Normally property is distributed after death in accordance with the intentions of the deceased as stated in their will. However, if the person dies succession laws step in and determine the distributions. Thus, the laws of intestate succession are default rules that apply only when a person has not chosen otherwise by creating a will.
What Laws Apply?
The exact laws of intestate succession will vary depending on your state. The Uniform Probate Code (UPC) is a body of laws that provides uniform procedures for dealing with wills, trusts, estates, and intestacy; and has been adopted by 18 states. Consult an attorney to find out more about the law of intestacy in your state.
Why Do I Need a Will?
While you are not required to have a will, its important to have a will because you can control how your property and assets will be distributed after your death. If you do not currently have a valid will, your family or loved ones may not receive the assets and property that you will to leave them in the event of your death.
Having a will allows you to have discretion over the distribution of your property and lets you be in charge of how your property will be distributed over the laws of your state. If you have minor children, a will lets your provide for their care. Most importantly, a will would prevent conflicts between your survivors since the will would dictate who gets what.
What Are the Legal Consequences of Dying Without a Will?
If you die without a will, your property will go through intestate succession and your property will be distributed to survivors in your family depending on the laws of your state. Contrary to a popular myth, the state does not inherit your property, but distributes your property by a intestate formula that is set.
Dying without a will may also impact your family or spouses financial difficulties if your spouse was counting on a bulk of your property, but now the property is split between your spouse and your children. Tax considerations also are different when dying without a will since a valid will may minimize the tax liability on your family.
Who Inherits Under Intestate Succession?
The following individuals, listed by order of preference, stand to inherit by intestate succession:
- Spouses: A surviving spouse will receive a portion of the decedent’s estate. Traditionally, this portion would range from one-third to one-half of the estate, but under the UPC a surviving spouse will receive the entire estate in many situations. The surviving spouse’s portion depends on whether the decedent is also survived by children, grandchildren, step children, or parents.
- Children and Descendants: If all of the decedent’s children outlive the decedent, all children receive equal portions of the decedent’s estate. However, if one or more of the decedent’s children have predeceased the decedent, their descendants will inherit a portion of the estate as well.
- Ancestors and Extended Family: Parents can only inherit via intestate succession if the decedent left no surviving children or descendants. Siblings, grandparents, nieces, nephews, cousins, etc. can only inherit via intestate succession if the decedent left no surviving children, descendants, or (under the UPC) spouse.
- Step-Children: Depending on the laws of the state a step-child of the decedent may inherit via intestate succession. This is a relatively new institution and has not been adopted by many states. It should be noted that step-children are not the same as adopted children. The law treats adopted children of the decedent the same as biological children of the decedent for purposes of intestate succession. Thus, if the decedent adopted their step-child, the step-child inherits as a child of the decedent, not as a step-child.
- The State: Ultimately, if a decedent dies leaving no heirs or next of kin, the decedents property escheats to the state.
What If My Spouse and I Die Intestate Leaving Minor Children?
If both parents die and do not leave a will designating a legal guardian, the court will appoint a guardian of the person to take responsibility for custody and care of minor children. This person is usually selected from among the children’s nearest living relatives. The court will also appoint someone to manage property and assets the parents left behind, until such time as the children are of age and capable of managing these assets on their own. This person is called a guardian of the property, conservator, custodian, or curator.
How Do I Get a Will?
Writing or creating a will is a very simple process. After your have gathered all the information regarding your assets and property of your estate that you plan on leaving your family at the event of your death, you may create a will by either typing it or handwriting it. Writing a will can be as simple as typing out how you want your property distributed. However, some states may have some rules that govern how a will is validly executed:
- Must be 18yrs of age or older
- A will must be written in sound judgment and have mental capacity to know you are creating a will
- The document must state that its your will
- Some states require you to get your will formally witnessed and signed to make it valid
- Will must be free from undue influence and duress
Do I Need a Lawyer for Help with Intestacy Laws?
If you have questions or issues regarding intestacy laws in your area, you may wish to contact an estate lawyer. An experienced estates attorney near you can assist with a wide range of tasks, including: creating a will, researching succession laws, and helping with property distributions. If you are involved in a dispute over estate matters, your lawyer can represent your interests in court.