What happens if I die without a will?

If a person dies without a Will (known as dying “intestate”), his or her property must go through the probate process in order to have the legal title to the property transferred to the heirs at law. The probate court appoints a Personal Representative (frequently called an “Administrator” or “Administratrix”) to receive all claims against the estate, pay creditors, and then distribute all remaining property in accordance with the laws of the state.

The major difference between dying testate (with a Will) and dying intestate (without a Will) is that a testate estate is distributed the way the decedent specifies in his/her Will, while an intestate estate is distributed to beneficiaries in accordance with the distribution plan established by the law of the state where the property is located. For example, if the decedent has no Will and owned real property in 3 different states, that property might be divided under 3 different rules. Probating an estate without a Will is also considerably more expensive than probating an estate with a Will, and the cost of that will be taken out of the property the heirs would have inherited.

The rules for determining who gets property distributed from an intestate estate vary from state to state. Subtle differences between the rules of different states can have a material effect on who inherits when there is no Will. Most state laws divide property among a surviving spouse and the children of the deceased. If there is no spouse, and there were only 2 kids, each would get 50% of all the property held in his own name.

An example of intestate estate distribution rules, taken from the community property state of California, is:

If married, the spouse gets 100% of the community property, but only one-third or one-half of the separate property left, as children, parents, and any issue of children or parents, can share in the distribution.

If not married (this includes widows and widowers), the property is distributed to relatives in the following order:

(1) All to your issue (your children, grandchildren, great-grandchildren, etc.), if there are any. If none, then

(2) All to your parents (equally), or to the surviving parent, if any. If none, then

(3) All to the issue of your parents (your brothers and sisters, then your nieces and nephews, etc.). If none, then

(4) All to your grandparents (equally) or the surviving grandparent, or the issue of your grandparents (your aunts and uncles, then your cousins, etc.). If none, then

(5) All to the issue of any predeceased spouse (your step-children). If none, then

(6) All to your next of kin. If none, then

(7) All to the parents of a predeceased spouse (your mother- and father-in-law), or the issue of the parents of the deceased spouse (your brothers- or sisters-in law). If none of the above exist, then

(8) All to the State of California

In addition, in common with many other states, California has many special rules that apply to widow/ers, half-siblings, children born out-of-wedlock, foster- and step-children.

The rules for intestate estates are very technical. The simple alternative is to control how your property is to be distributed, by preparing a valid Will.

There are also other ways to transfer property outside of a Will, such as by joint ownership or joint accounts with a right of survivorship, pay-on-death accounts, joint tenancy, and named beneficiaries for insurance policies and pension plans. You need to check very carefully to make sure that all bank accounts, vehicles, real property, funds, stock, or other property have been set up under the laws of your state so that they will be transferred the way you want them to be when you die. If this is not done properly, the property will become part of the intestate estate and will be distributed under state law, not to the person designated by the decedent. So, for example, in a state where a spouse gets 50% of property under the state’s intestate succession laws, a widow might end up owning only 50% of her home, which was in her husband’s name, when he meant her to receive the full title. You might want to get advice from an Estate Planning attorney if you’re not certain about how these transfers are made in your state.

Comments are closed.