| What Happens If You Die Without a Will? |
When a person dies without a valid will, that person is said to die intestate. If a deceased person did not leave a will, all probate assets of the deceased will be distributed to his
legal heirs
according to the laws of intestate succession of the state where the deceased was domiciled.
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When most people learn who will get their property if they die without a will, they do not agree with the outcome. The laws of intestacy do not take into account your personal feelings, family history or the actual relationship you have with your natural heirs. Intestate succession laws place no restrictions or limitations on what an heir can do with money inherited from your estate. Even if you haven’t seen a parent, sibling or child in years, if that person is listed as next in line to inherit your estate according to applicable state laws, he or she will be given your property when you die, unless you make a valid will or place your assets in a living trust. While it is always preferable to have your will prepared by an attorney, making your will using a basic estate planning form gives you more control than leaving it up to state law.There are many important details in the laws of intestate succession. For example, real estate is often treated differently than personal property. Children of the deceased that are not also children of the deceased’s surviving spouse may receive a different share of property than children born to both the deceased and the surviving spouse. Community property may be treated differently than the decedent’s separate property. Some types of property are excluded from intestacy laws because they are considered non-probate assets or pass outside of probate. Most importantly, the intestacy laws are not the same in every state. The inheritance a child takes by intestate succession in California may be very different from the inheritance that same child would receive in Florida. If you are administering the estate of someone who died without a will, be sure you understand these important details. They are usually set forth in the state probate code and other state statutes. To find inheritance laws for a particular state, go to
state laws.
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| Property That Passes Outside of Probate |
Even if a person dies without a will, it is possible some or all of his property may pass outside of probate. These types of nonprobate assets do not pass according to the laws of intestate succession, but instead pass to the surviving property owner or named beneficiary.
The deceased person’s share of real estate and other property owned as joint tenants with another person automatically passes to the surviving joint tenant. Accounts with a named beneficiary, such as pay on death accounts, IRA’s, 401k’s, other retirement accounts, and life insurance policies, do not pass according to the laws of intestate succession because they go directly to the designated beneficiary upon the account owner’s death. These types of assets pass to the named beneficiary or surviving joint tenant irrespective of whether the owner had a will. Nevertheless, in certain circumstances, a surviving spouse may still be able to take an elective share of non-probate assets. For example, if the decedent made transfers to a non-spouse in contemplation of death or to intentionally disinherit the surviving spouse, the non-probate property may be subject to a claim by the surviving spouse for an elective share of the decedent’s augmented estate. Whether a surviving spouse has any rights to non-probate property is a matter of applicable state law and the unique facts of the situation. For more information on spousal share rights under the laws of intestate succession, visit our Spousal Share page and consult a probate lawyer.
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| Heir Must Survive Decedent to Inherit |
In order to inherit from the estate of a person who dies without a will, an heir must be deemed to have survived the decedent. State intestate succession laws typically specify that an heir must be alive a certain number of hours or days after the decedent’s death to take a share of the deceased person’s estate. If an individual is not alive for the required time frame after the deceased person’s death, they will be deemed to have predeceased the decedent and will not inherit from the probate estate. See Probate Questions for more information.
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| If You Don't Want Certain Heirs to Inherit |
One issue that may motivate you to make a will is making sure certain legal heirs do not inherit from your estate. For example, if you have a relative that you know is legally your next of kin or could possibly receive an inheritance depending on how things play out, you may be upset at the thought of that person getting anything from your estate.Whether you had a dispute with a sibling or cousin or were abandoned by a parent early in life, you may have one or more relatives with whom you are not close. However, depending on how many relatives survive you and the laws of the state where you live, this person could be in line to inherit from you, regardless of whether you are on speaking terms. It is not uncommon for example, for someone to want to disinherit a parent named on their birth certificate that has not been a part of that person's life. To continue, go to disinherit a parent.
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