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Intestacy - Dying Without a Will

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What does "dying intestate" mean?

If you die intestate, it means that you die without having executed a valid will.

What will happen to my property if I die without a will?

When this happens, your belongings are distributed to your "heirs," as defined by your state’s law, and in shares pursuant to your state’s law. Basically, the state will decide who gets your property, without any regard as to your feelings toward family members, nor any special relationships you may have formed outside of your family. The law assumes, sometimes incorrectly, that you would have devised everything to your family. You have no control over the disposition of your property, so if you care about who owns your property, have a will prepared before you die. Also, if your will is invalid or if you don’t dispose of all of your property under your will, and you have no residuary clause, then the undisposed-of property will pass under intestacy.

SIDEBAR: If you want to disinherit a family member or next of kin, then you need to create a will and dispose of all of your property. It is the best way to make sure that your property does not end up in the hands of someone you disfavor.

Who are my heirs?

Your heirs are the people who receive your property when you die without a will, as determined by your state’s intestacy laws. They generally include your relatives, sometimes even remote next of kin. The statutes vary from state to state, but the order of priority might look like this:

  • If there is a surviving spouse and no descendants, then your surviving spouse takes the entire estate.
  • If there are descendants but no surviving spouse, then your descendants take the entire estate.
  • If there are descendants and a surviving spouse, then they will share the estate (usually one-half to your spouse and the other one-half is divided among your descendants).
  • If there is no surviving spouse or descendants, then your parents take the estate.
  • If there are no parents, then your siblings and their descendants take the estate.
  • If there are no siblings or their descendants, then your grandparents and their descendants take the estate.
  • If there are no grandparents or their descendants, then your estate goes to the state.

What if I die without any heirs - will my property pass to my friends?

No - your estate "escheats." This means that it passes to the state. All the more reason to plan for your death by planning your estate!

According to which state’s laws does my property pass?

Real property is governed by the laws of the state in which it is located, while personal property is governed by the law of the state in which you lived when you died. This is important for intestate succession purposes because sometimes people die owning land in other states. To determine who the land passes to under intestacy, the intestate succession laws of the state in which the land is located control.

I am married and have no children. I want my spouse to receive everything when I die so I don’t really need a will. Isn’t that what happens under intestacy?

Not necessarily. It depends on your state’s intestate succession laws - some provide that your spouse will have to share your estate with your parents. It would be in your spouse’s best interest for you to leave a will; or at the very least, check your state’s law before deciding against one.

What if I want to disinherit some of my relatives? How can I do that without a will?

You can’t! That’s why it is so important to have a will. If you die owning any property that is not mentioned in your will or given away by some other means, it will pass under intestacy, possibly to relatives that you do not like. The best way to disinherit someone is to make a will and dispose of all of your property!

My half-sister recently passed away. Am I entitled to any part of her estate?

It depends on the law of your state. Some states allow half-bloods to share in an estate equally as whole bloods, while most others provide that half-bloods take only half as much as whole bloods.

My daughter is adopted. Will she be entitled to my property since she is not my natural child?

Your daughter can inherit from you and will be treated as your natural child for purposes of distributing your intestate estate or that of your relatives. That means that if you have any other children, she will share your estate equally with them.

What about her birth parents - can she inherit from them as well?

Generally, she will not be able to inherit from her birth parents (unless they include her in their wills), though some states do make exceptions to this rule if she is adopted by a relative or if her birth parent died before she was adopted.

I don’t get along with my stepchildren. Will they be entitled to my property when I die?

No, as long as you did not adopt them or make any type of agreement to adopt them before you died. Unless you provide for them in your will, they will not share in your estate.

My girlfriend and I recently had a son. Will he be able to inherit from us if we are not married?

Your son will be able to inherit from his mother, but he can inherit from you only if you and his mother get married or if he is legally proven to be your son by the establishment of paternity.

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