When a person dies without leaving a will, it is known as intestacy. In such cases, the person is said to have died “intestate” (without a will). Each state has its own laws that address the distribution of the deceased person’s property if there is no valid will. These state laws distinguish between total intestacy and partial intestacy.
Total intestacy is where the person dies with no valid will. Partial intestacy is where the will does not dispose of all the property the decedent (the deceased person) owns.
How Can I Better Understand Intestacy?
Intestacy rules vary by state. Intestacy rules are usually complex. Some states treat domestic partners differently. Some states do not have well-defined statutes that explain the rights of domestic partners, especially in same-sex relationships. A number of states consider all registered partners the same as spouses, but this is not true everywhere.
Most states have rules that keep people who have malice towards the deceased from receiving an inheritance. For example, anyone responsible for the death of a deceased person or who did not pay child support for a child that has died cannot profit from their deaths.
Generally, courts try to split up any real estate holdings, life insurance proceeds, bank accounts, security, and personal property of the deceased once all debts are paid off.
State laws usually determine who is the personal representative or executor. Probate courts generally make this decision. In general, surviving spouses are the first choice. In several states, domestic partners have the same rights as surviving spouses. Adult children are typically next in line. Being a personal representative may be frustrating and time-consuming, especially if beneficiaries fight about the estate or contest the will. Additionally, personal representatives are usually personally liable for any claims of fraud or mismanagement by the beneficiaries.
Will My Spouse Receive Everything if I Don’t Leave a Will?
Not necessarily. The amount that a surviving spouse inherits depends on several factors, including your state’s laws (whether you live in a community property state) and which of your other relatives survive you.
If the decedent leaves no children, then the spouse might get everything or share some of the property with the decedent’s parents. If the decedent did leave children, then 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 or percentage of the property and divide the rest between the children. In other states, the spouse gets everything; the children must then rely on the surviving parent as a conduit, leaving them anything that remains at her death.
Ultimately, it will depend on the laws of your state and the unique breakdown of your family. For example, if you have grandchildren but their parent (your child) died before you, your grandchildren may also inherit depending on the surrounding circumstances.
What if the Deceased Spouse is Not My Natural Parent?
Suppose the decedent is not the natural or biological parent of the surviving spouse’s children. In that case, those children will not inherit unless they have adopted the children to make them legally their children.
In this case, the surviving spouse will inherit, and any of the decedent’s biological and legal children will inherit. Intestacy will end up excluding any of the decedent’s step-children. So if the testator (the person writing the will) has any step-children or non-legal/non-biological children, they must make specific provisions for them in a will or a trust.
Who Will Inherit Under an Intestacy Scheme?
Each state has different laws regarding how the estate will be distributed when there is no will. Usually, the spouse has the first right. After the spouse, the descendants are usually next to inherit property. Most state laws follow each child’s line until there is a survivor.
If the decedent left no children, then the next people to take possession of the property are usually the decedent’s parents. If the decedent’s parents are no longer alive, then the next set of heirs would be any siblings. If the decedent has no living siblings, then the decedent’s nephews/nieces would inherit and so on.
If the decedent does not have any close family members, 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 their family tree.
If there are no eligible family members, the decedent’s property will most likely escheat, which means it will go to the state. This is seen by many as an unfavorable result of the property distribution and a reason why many people commonly wish to have a will in place before they pass away.
How Much Will Each Person Inherit Under Intestacy?
The per capita approach, followed by some states, counts all the decedent’s surviving heirs and gives each heir an equal share. So the more heirs a person has, the less each heir would receive.
The per stirpes approach, followed by many other states, divides the estate property differently. If the decedent left three children, each would take an equal share (one-third). But, if one of those children is no longer alive at the time, then the one-third share of that child would be shared equally by that child’s heirs.
Do Adopted Children Inherit the Same Amount as Biological Children?
There may be questions about whether an adopted person (the adoptee) can inherit from the adoptee’s natural parents and the adoptee’s adoptive parents.
In general, many states remove the adoptee from the families of their genetic parents and consider the adoptee as part of the adoptive parents’ family for legal purposes. Some states place the child in both families for estate inheritance purposes. Other states allow the adopted child to inherit from both the genetic and adoptive parents; however, they may cut off the genetic parents from inheriting from the child.
What are Common Difficulties of Intestacy?
Intestacy laws are in place to make the best of a difficult situation. For example, consider the estate of pop icon and global superstar Prince. Because Prince died intestate and the value of his assets was difficult to put a number on because they included the rights to his massive music catalog, as well as the rights to his name and likeness, his heirs still had not received a penny in inheritance more than two years after the artist’s death.
It is generally important to make a will or have a will made on your behalf by an estate lawyer qualified to do so. By hiring an estate lawyer, you ensure that your friends and family will receive the contents of your estate upon your death. Your loved ones and heirs can avoid the process of probate and intestacy if you take the time to have a will made while you’re alive. Intestacy often causes added anguish and grief for those left behind.
Do I Need a Lawyer for Help If I Am Deal with Intestacy?
If you have any concerns or legal conflicts involving intestacy issues, you should consult with an estate lawyer. An estate lawyer in your area can inform you of your rights and preserve any possible legal remedies you may have.