FAQ: Probate & Estate Administration

Understanding Intestacy: When You Die Without a Will

Understanding Intestacy: When You Die Without a Will

Studies indicate that many persons who have accumulated wealth during their lifetime die without a valid will. When this happens, the decedent's property passes by intestate succession to the decedent's heirs at law according to law. In other words, if you don't have a will, the state will make one for you. All fifty states have laws of this sort.

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 is 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.

1990 Uniform Probate Code

The 1990 Uniform Probate Code (the Code), which serves as the starting point for many states' laws, represents the best reference for a general discussion. However, it should be kept in mind that the laws of different states vary greatly from each other and from the Code itself.

Under the Code, close relatives take priority over more distant relatives. The classes of relatives whose members receive property under the Code include the decedent's surviving spouse, descendents (children, grandchildren, etc.), parents, descendents of decedent's parents (siblings, nieces and nephews), grandparents, and descendents of grandparents (aunts and uncles and cousins). Adopted descendents are treated the same as biological descendents. If none of the above-named classes of relatives include any persons qualified to take the estate, the property "escheats" (goes by default) to the state.

• Share Of Surviving Spouse
  
  Under the Code, a surviving spouse is either entitled to the entire estate (after the expenses and taxes of the decedent are paid) or a substantial part of it.
  
  
  • 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 descendents or parents.
    
    
  • If parents survive but no descendents survive, a surviving spouse takes the first $200,000 of the net estate plus 3/4 of anything exceeding that amount.
    
    
  • If all of the surviving descendents of the decedent are also the descendents of the surviving spouse, and the surviving spouse has living descendents who are not descendents of the surviving spouse, the surviving spouse takes the first $150,000 of the net estate plus 1/2 of anything exceeding that amount.
    
    
  • If the decedent is survived by descendents who are not descendents of the surviving spouse, the surviving spouse takes the first $100,000 of the net estate plus 1/2 of anything exceeding that amount.
    
    
  • Under alternative provisions for community property states, the above statements apply to the decedent's separate property. As to community property, the 1/2 of the estate belonging to the decedent passes to surviving spouse.
    
    
• Share of Descendents
  
  Under the Code, if no spouse survives but descendents of the decedent survive, the descendents take the entire net estate by "representation." (See discussion of "Representation," below.)
  
  
• Share of Parents
  
  Under the Code, if a decedent is not survived by a spouse or descendents, 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, descendents, or parents, the entire net estate passes to the decedent's parent's descendents (siblings of the decedent). If there are no siblings or descendents of siblings, the net estate goes to the decedent's grandparents or their descendents.
  
  
• Net Estate
  
  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. Under the Code the surviving spouse or minor child(ren) is entitled to a $15,000 homestead allowance, a family allowance in a reasonable amount to support the family during the administration of the estate, and a $10,000 exempt-property allowance (ordinarily charged against household furniture, automobiles, furnishings, appliances, and personal effects).
  
  
• Representation
  
  If a decedent's intestate estate or a part thereof passes "by representation" to the decedent's descendants, the estate or part thereof is divided into as many equal shares as there are (i) surviving descendants in the generation nearest to the decedent which contains one or more surviving descendants and (ii) deceased descendants in the same generation who left surviving descendants, if any. Each surviving descendant in the nearest generation is allocated one share. The remaining shares, if any, are combined and then divided in the same manner among the surviving descendants of the deceased descendants as if the surviving descendants who were allocated a share and their surviving descendants had predeceased the decedent. Similar rules apply where the estate passes "by representation" to descendents of parents or grandparents.
  
  

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