Who will inherit if I die without a will?
Sitting down to draft a will can be difficult—either because you don’t want to think of that inevitable end or because it’s just hard to make time for those administrative tasks.
Knowing what will happen to your estate if you don’t create a will can be a helpful incentive to get down to action.
The probate process
First things first: when someone dies, the process through which their debts get paid and their assets get distributed is called “probate.” The probate process is overseen by a local probate court and administered by an executor (when there’s a will) or an administrator (when there isn’t one).
If the decedent died without a will, the probate court will appoint an administrator to manage the estate, including paying debts and locating heirs. Probate judges often appoint the next of kin (for instance, the spouse) as administrator.
During the probate process, an administrator is responsible for using estate funds to pay off all estate debts and taxes before any heirs can receive an inheritance. Once all debts and taxes are paid, heirs can inherit through the laws of intestate succession.
Laws of intestate succession
“Intestate succession” is one of the most legalese-sounding phrases in the whole probate process. But it’s actually a relatively simple concept. When someone dies without a will, they are said to have died “intestate.” And the laws of intestate succession determine how their estate’s assets will be distributed—no matter what.
So what if the day before Uncle James died, he told you that he wanted half his estate to go to his children and half to the local animal shelter? If Uncle James didn’t have a will, the animal shelter gets nothing.
What if Roberta tells her three children before she dies that she wants to split their inheritance in an unequal way—not because she loves any of them any less, but because her youngest daughter suffers from a degenerative disease and will need more support throughout her life—but then Roberta dies without a will?
The probate court will split the funds among the children equally, regardless of Roberta’s wishes or of her daughter’s special needs.
Without a valid will, the laws of intestate succession are firm. Each state has the right to create its own order of priority, but many follow the Uniform Probate Code.
The general priority of inheritance is as follows:
- If the deceased had a living spouse and children, they inherit everything. State law varies in terms of how much goes to whom.
- If the deceased had no living spouse, the children inherit everything.
- If the deceased had no living children, the spouse inherits everything.
- If the deceased had no living spouse or children, the deceased’s parents or grandchildren inherit.
- If the deceased had no living parents or grandchildren, the deceased’s siblings inherit.
- If the deceased had no living siblings, the deceased’s nieces and nephews inherit.
- If the deceased had no living nieces and nephews, the deceased’s aunts and uncles inherit.
- If the deceased had no living aunts and uncles, the deceased’s cousins inherit.
If someone dies without a will and also without living relatives, the estate is conveyed to the state treasury through a process called “escheat.”
As you can see from the general priority above, inheritance laws generally favor those with the closest kinship to the deceased.
Share of estate for surviving spouse and children
For a very traditional nuclear family, the intestacy laws can be relatively straightforward and are meant to approximate what the average person would likely do when creating a will.
However, blended families and changing family structures can create complications. Let’s look at a few examples using the Uniform Probate Code.
- Bob and Margaret get married and have three children. Bob dies without a will. Margaret inherits Bob’s entire estate.
- Bob and Margaret get married and choose not to have children. Bob dies without a will. Margaret inherits $200,000 of Bob’s estate plus ¾ of anything that exceeds that amount. But Bob’s mother (still living) inherits the remaining ¼ of the estate.
- Bob and Margaret get married and choose not to have children. Bob’s parents both die, and Bob dies without a will. Margaret inherits Bob’s entire estate.
- Bob and Margaret get married and have two children. They get divorced, and Bob marries Linda. Bob and Linda have one child. Bob dies without a will. Linda inherits $150,000 of Bob’s estate plus ½ of anything that exceeds that amount. The other ½ is split equally among Bob’s three children (two from his marriage to Margaret and one from his marriage to Linda).
- Bob and Margaret get married and have two children. They get divorced, and Bob marries Linda. Bob dies without a will. Linda inherits $100,000 of Bob’s estate plus ½ of anything that exceeds that amount. The remaining ½ is split equally among Bob and Margaret’s two children.
For some, the laws of intestacy could mirror their own intent, but why leave it to chance? Creating a will is a relatively straightforward task, and it doesn’t need to be done by a lawyer. Contact us for answers to all your estate planning questions.