When an individual passes away not having a genuine will for them, their property is transferred by what is referred to as “intestate succession” to heirs in accordance with state law. That is to say, if you don’t have a will, the state is going to create one for you. Every state in the US have laws (or “statutes”) of this sort on record.
The intention of intestate succession laws is to allocate the decedent’s wealth in a way that closely depicts how the average individual would have designed their estate plan, had that individual had a will. Nevertheless, this default can vary drastically from what the person really would have wished for. Even when it is known what the person meant, no exceptions are going to be made when no valid will exists. And there are no exceptions made because of need or special situation.
The Uniform Probate Code
The Uniform Probate Code (the Code) plays the part as the origin for a lot of states’ laws. However, the laws of various states can differ greatly from on another and from the Code on its own. However, the Code exemplifies the best referral for a typical discussion.
Pursuant to the Code, closer relatives acquire property rather than distant relatives. The categories of relatives of which members receive property pursuant to the Code comprise of the decedent’s living spouse, their child(ren), grandchild(ren), etc.), their parents, descendants of decedent’s parents (brothers and/or sisters, nieces and/or nephews), grandparents, and aunts, uncles and/or cousins. Descendants that are adopted are given the same treatment as biological descendants. When none of the aforementioned categories of relatives comprises of any individuals eligible to acquire the estate, the property “escheats” (defaults) to the state.
Share Of Surviving Spouse
Pursuant to the Code, a surviving spouse is either eligible to take the whole estate (following costs and taxes of the decedent) or a significant portion of it. For instance:
- The surviving spouse is eligible to take the whole net estate when the decedent also is survived by child(ren) that are all child(ren) of the decedent and the surviving spouse.
- The surviving spouse is also eligible to take the entire net estate when the decedent isn’t survived by descendants and parents.
- If parents survive but there are no descendants that do, a surviving spouse acquires the initial $200,000 of the net estate along with 3-4ths of anything going over that amount.
- When the deceased is survived by descendants that also are the descendants of the living spouse, and by descendants that aren’t descendants of the living spouse, the surviving spouse acquires the initial $150,000 of the net estate including one-half of anything going over that amount.
If the deceased isn’t survived by descendants that also are descendant of the surviving spouse however is survived by descendants that aren’t descendants of the living spouse, the surviving spouse acquires the initial $100,000 of the net estate including one-half of anything going over that amount.
Share of Descendants
Pursuant to the Code, when the spouse doesn’t survive but descendants of the decedent do, the descendants acquire the whole net estate through “right of representation.”
Share of Parents
Pursuant to the Code, when a decedent isn’t survived by a spouse and/or descendants, the whole net estate transfers to the decedent’s parents equally or, when only one survives, to the survivor.
Share of Other Relatives
Pursuant to the Code, when a decedent isn’t survived by a spouse, descendants, or their parents, the whole net estate transfers to the decedent’s parent’s descendants (brothers and/or sisters of the decedent). When there aren’t any siblings and/or descendants of siblings, the net estate transfers to the grandparents of the decedents or their descendants.
The “Net Estate” is in reference to the amount leftover for allocations to heirs following all debts, family protections, taxes, and administrative costs have been taken care of. “Family protections” comprise of homestead, family, and exempt property allowances.
Speak With an Attorney to Better Understand Intestacy
Feeling overcome by the probate code? Scared of the consequences of you or a loved one passing away not having a will? Troubled that an unfavorable relative might get an unjust share of the assets? These are all valid questions and ones that are able to be addressed by a legal professional. Obtain peace of mind by getting a hold of an estate planning attorney to aid you in your estate planning.
Understanding intestacy: If you die without an estate plan. Findlaw. (2021, March 3). Retrieved March 18, 2022, from https://www.findlaw.com/estate/planning-an-estate/understanding-intestacy-if-you-die-without-an-estate-plan.html
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