If You Die Without an Estate Plan — Understanding Intestacy

Intestacy is the situation when a person passes away without leaving a valid will. In such a case, their estate would pass on to their heirs in “intestate succession” which is determined by the specific state laws. There are laws on intestate succession in all 50 states.

When you do not make a will, the state will essentially distribute your property for you in a way that may be considered as an average person’s choice in distributing their own property had they left a will. The disadvantage of living the property distribution to the state is that your estate may be distributed in a manner that you really didn’t intend. The states’ laws on intestate succession do not take into consideration the needs or circumstances of the heirs, but look at the legal relations between the decedent and the beneficiary.

1990 UNIFORM PROBATE CODE

The Uniform Probate Code of 1990 is the basis for the probate laws of different states. The states’ laws may have variations from the Code, but for the purposes of general discussion on probate laws, the Code is the best place to start.

The Code provides that close relatives receive the decedent’s properties and not distant relatives. The close relatives are the surviving spouse; descendants such as children and grand children; the decedent’s parents; descendants of parents such as siblings, nephews, nieces; grandparents; and descendants of the decedent’s grandparents such as uncles, aunts and cousins. Adopted descendants are considered as the same as biological descendants in terms of succession.

If none of the above-mentioned relatives are available, then the decedent’s estate escheats or goes to the state.

Share Of Surviving Spouse

According to the Code, the surviving spouse either gets the entire estate or a significant 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 descendants 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.

Share of Descendants

Under the Code, the descendants take the entire net estate by “right of representation” if no spouse survives but descendants of the decedent survive.

Share of Parents

Under the Code,the entire net estate passes to the decedent’s parents equally or, if only one survives, to the survivor if a decedent is not survived by a spouse or descendants.

Share of Other Relatives

Under the Code, the entire net estate goes to the decedent’s parents’ descendants (siblings of the decedent and their descendants) if a decedent is not survived by a spouse, descendants, or parents.

The net estate is passed on to the decedent’s grandparents or their descendants if there are no siblings or descendants of siblings.

Net Estate

After all the debts, taxes, family protections and administrative expenses have been paid, what is left would be the net estate. The net estate is what would be distributed among the decedent’s heirs. Family protection are family allowances,homestead allowances,  and exempt property allowances.

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