Understanding Intestacy: If You Die Without an Estate Plan
When a person dies without having a valid will in place, his or her property passes by what is called "intestate succession" to heirs according to state law. In other words, if you don't have a will, the state will make one for you. All fifty states have laws (or "statutes") of this kind on the books.
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 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) serves as the starting point for many states' laws. Nevertheless, the laws of different states can vary greatly from each other and from the Code itself. However, the Code represents the best reference for a general discussion.
Under the Code, close relatives take property instead of 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.
Under the Code, a surviving spouse is either entitled to the entire estate (after expenses and taxes of the decedent) or a substantial part of it. For example:
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 and parents.
If parents survive but no descendents survive, a surviving spouse takes the first $200,000 of the net estate plus three-fourths of anything exceeding that amount.
If the decedent is survived by descendents who are also the descendents of the surviving spouse, and by descendents who are not descendents of the surviving spouse, the surviving spouse takes the first $150,000 of the net estate plus one-half of anything exceeding that amount.
If the decedent is not survived by any descendents who are also descendent of the surviving spouse but 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 one-half of anything exceeding that amount.
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