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What Happens When You Die Without a Will: Understanding Intestacy Laws
Losing a loved one is a difficult experience, and it becomes even more complex when there is no will in place. When someone dies without a will, they are considered “intestate,” and the distribution of their property is determined by the intestacy laws of the state they resided in. In this article, we will explore the implications of dying without a will, the different types of assets involved, and how the probate court handles the distribution process.
Intestacy refers to the legal status of a person who has passed away without leaving a valid will. In such cases, the state’s intestacy laws come into play to determine how the deceased person’s assets will be distributed among their heirs, known as the next of kin. Each state has its own set of intestate succession laws, which outline the order of priority for distributing the assets.
Typically, the intestacy laws allocate the property in shares to family members, including the surviving spouse, adult or minor children, adopted children, parents, siblings, aunts, uncles, nieces, nephews, cousins, and distant relatives. However, it’s important to note that stepchildren, long-time partners, and loved ones who are not family members usually do not receive a share of the estate if there is no valid will. In cases where the state cannot locate any relatives, the entire estate may pass (“escheat”) to the state.
It’s worth mentioning that when it comes to real estate, the intestacy laws for distribution may vary if the deceased person owned property in a state other than their primary residence. In such situations, the property is handled under the intestacy laws of the state where the property is located.
Not all assets pass through the probate court when someone dies without a will. Certain types of property have their own mechanisms for transferring ownership, bypassing the probate process. Let’s explore some common non-probate assets and how they are handled.
Property Transferred with a Deed
When property is conveyed through a deed, it does not go through the probate court. In these cases, while the remaining property of the estate is distributed as per the intestacy laws, the family home or other real estate is transferred differently, depending on the type of ownership.
- Tenancy by the Entirety or Joint Tenancy with Right of Survivorship: If the property is owned under tenancy by the entirety or joint tenancy with the right of survivorship, both spouses share equal ownership. When one spouse passes away, the surviving spouse automatically inherits the deceased spouse’s share.
- Tenants in Common: In the case of tenants in common, each spouse owns a specific share of the property, which may not be equal. If one spouse dies, the surviving spouse retains their share, while the deceased spouse’s share is divided among their heirs.
Property with Named Beneficiaries
Certain assets have designated beneficiaries, allowing them to pass directly to the named individuals without going through probate. These assets include:
- Life Insurance Policy: Most life insurance policies allow the policyholder to name beneficiaries who will receive the policy’s payout upon the insured person’s death.
- Banking Accounts, Retirement Accounts, and IRAs: By naming beneficiaries on banking or retirement accounts, the assets held in these accounts can bypass probate and be transferred directly to the designated individuals.
- Assets in a Living Trust: Assets held in a living trust can be transferred to named beneficiaries immediately after the grantor’s death, without the need for probate.
Probate assets are those that must go through the probate process when someone dies without a will. The fate of these assets varies based on the state’s intestacy laws and the relationships the deceased person had with their surviving spouse, partner, children, and other relatives. Additionally, the probate court appoints a personal representative to administer the estate. Let’s explore some common scenarios that arise when an individual dies intestate.
Unmarried and No Children
When an unmarried person dies without a will, the intestacy laws of many states distribute the estate as follows:
- If the deceased person has children, the entire estate is divided equally among their children. If a child has predeceased them, and that child had children of their own, the deceased child’s share goes to their grandchildren.
- If the deceased person does not have children, the estate is awarded to their parents equally.
- If one parent has already passed away, the estate is divided between the surviving parent and the deceased person’s siblings, including half-siblings.
- In cases where there are no surviving parents, the estate is divided equally among the siblings.
- If there are no close relatives, the estate is divided among the descendants of the deceased person’s siblings (nieces and nephews).
- If the state cannot locate any heirs, the entire estate escheats to the state.
The way property is divided when a married person dies without a will depends on whether they live in a community property or separate property state, the title of the assets, and the state’s intestacy laws.
- In a community property state, the entire estate goes to the surviving spouse.
- In a separate property state, the rules vary. If the married individual has children with their current spouse, the surviving spouse usually receives the entire estate. However, if the deceased person has children from another partner, the surviving spouse may receive up to half of the estate, with the remaining portion going to the surviving children. If there are no children, the surviving spouse may receive 1/3 to 1/2 of the estate, with the rest divided among the deceased person’s parents and siblings.
The laws regarding domestic partnerships and their impact on property distribution vary from state to state. It’s essential to check the specific laws of the state where the partners reside to understand how property will be distributed in the event of one partner’s death. In states that fully recognize domestic partnerships, such as Connecticut, Hawaii, Nevada, Oregon, Vermont, and Washington, a registered domestic partner inherits the same way a married surviving spouse does.
For property conveyed through a deed, refer to the previous section.
Cohabiting or Common Law Marriage
Unmarried couples who live together face significant challenges when one partner dies without a will. Intestate succession laws typically only recognize relationships based on blood, marriage, or adoption.
Cohabiting couples generally cannot inherit the property of their deceased partner without a will that explicitly states their intentions. In the absence of a will, the deceased partner’s property will be distributed to their relatives based on intestate succession law. The surviving partner will only retain their separate property. Property owned jointly as tenancy by the entirety or joint tenants with the right of survivorship will pass to the surviving partner.
Common-law marriage, if recognized in the state, may allow the surviving partner to inherit. However, the common-law relationship must be proven.
As of 2022, seven states and the District of Columbia acknowledge common-law marriages – Colorado, Iowa, Kansas, Montana, New Hampshire, Oklahoma, Rhode Island, Texas, and Utah. It’s important to note that common-law marriage recognition in Oklahoma and Rhode Island is based on court decisions rather than statutes. New Hampshire recognizes common-law marriage only for probate purposes. If you believe your situation falls under common-law marriage, familiarize yourself with the laws of your state.
Planning Ahead: Drafting a Will
To avoid the complications and uncertainties that arise when someone dies without a will, it’s crucial to draft a will. Creating a will doesn’t have to be a complex process, especially for simple estates. Many resources, such as state-specific last will and testament forms, are available to guide you through the process. By planning ahead and clearly stating your wishes, you can ensure that your assets are distributed according to your intentions and minimize potential conflicts among your loved ones.
Dying without a will can lead to complications and uncertainty regarding the distribution of assets. Understanding the intestacy laws of your state is essential to grasp how your property will be distributed among your next of kin. By familiarizing yourself with the different types of assets, including non-probate and probate assets, you can ensure that you make informed decisions about estate planning. Remember, drafting a will allows you to have control over the distribution of your assets and provides peace of mind for your loved ones during a difficult time.
Estate planning is a personal and unique process, and consulting an estate planning attorney may be beneficial to ensure that your specific circumstances are taken into account. Start planning today to secure your assets and leave a clear plan for your loved ones.