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Dying without a will -- who gets what?

June 22, 2017

 

(The companion article titled Who's in Charge When Someone Dies Without a Will explains, well, who's in charge when someone dies without a will. That article can be found here.)

 

Dying without a will (or a will substitute) is called dying "intestate." In those cases, state law would control how your assets are distributed -- and it can get very complicated. Consider these examples:

 

(i)  Single person dies OR Person dies with NO SURVIVING SPOUSE

 

Basic fact pattern:

Bill has two children: John and Rachel. John has one child, and Rachel has three. So Bill has four grandchildren. Bill's wife passed away years ago.

 

Example A

Bill dies a year from now. John and Rachel both survive him, as do all the grandchildren. 

- John and Rachel each inherit 1/2 of the estate

- The grandchildren will inherit nothing

 

Example B

Bill dies a year from now. John survives him, but Rachel does not. All the grandchildren are still alive.

- John inherits 1/2 of the estate

- The other 1/2 will be divided evenly between Rachel's children (or 1/6 to each of Rachel's children)

 

Example C

Bill dies a year from now. His children do not survive him, but all the grandchildren do.

- The four grandchildren will each inherit 1/4 of the estate

 

Example D

Bill dies a year from now. He outlived all his children and grandchildren.

- If Bill had more "issue," they would inherit (e.g., great-grandchildren, great-great-grandchildren)

- If not, Bill's parents would inherit;

- If not, the issue of Bill's parents would inherit;

- If not, Bill's grandparents would inherit;

- If not, the issue of Bill's grandparents would inherit (e.g., aunts, uncles, and cousins);

- If not, the issue of Bill's predeceased spouse (if they were not also his own issue) would inherit

- If not, Bill's "next of kin" would inherit

- If not, the parents of Bill's predeceased spouse would inherit

- If not, the issue of the parents of Bill's predeceased spouse would inherit (e.g., brothers in law and sisters in law)

- If none of the above people survived Bill, his estate would "escheat" to the state 

 

(ii)  Person dies LEAVING A SURVIVING SPOUSE

 

Basic fact pattern:

Bill and Wife have two children: John and Rachel. John has one child, and Rachel has three. So Bill and Wife have four grandchildren.

 

Example A

Bill dies. Wife survives him, as do their children and grandchildren.

COMMUNITY PROPERTY

- Wife inherits all community property

SEPARATE PROPERTY

- Wife inherits 1/3 of the separate property

- John and Rachel each inherit 1/3 of the separate property

- The grandchildren inherit nothing

 

Example B

Bill dies. Wife survives him, as did their son John. Their daughter Rachel did not survive him, but all their grandchildren did.

COMMUNITY PROPERTY

- Wife inherits all community property

SEPARATE PROPERTY

- Wife inherits 1/3 of the separate property

- John inherits 1/3 of the separate property

- Rachel's children (three of the four grandchildren) inherit 1/3 of the separate property (or 1/9 each)

- John's child (the fourth grandchild) inherits nothing

 

Example C

Bill dies. Wife survives him, but all their children and grandchildren do not. Bill's two siblings also survive him.

COMMUNITY PROPERTY

- Wife inherits all community property

SEPARATE PROPERTY

- Wife inherits 1/2 of the separate property

- Bill's two siblings inherit 1/2 of the separate property (or 1/4 each)

 

Example D

Bill dies. Wife survives him, but all their children and grandchildren do not. Bill's parents also survive him.

COMMUNITY PROPERTY

- Wife inherits all community property

SEPARATE PROPERTY

- Wife inherits 1/2 of the separate property

- Bill's parents inherit 1/2 of the separate property

 

Example E

Bill dies. Wife survives, but their two children do not. Their four grandchildren also survive him.

COMMUNITY PROPERTY

- Wife inherits all community property

SEPARATE PROPERTY

- Wife inherits 1/3 of the separate property

- The four grandchildren inherit 2/3 of the separate property (or 1/6 each) 

 

Some important things to keep in mind

 

- Adopted children (and their children) have the same inheritance rights as biological children.

 

- Relatives who were conceived before a decedent died -- but born after -- are deemed to have been alive when the decedent died.

 

- There are ways for a person to be barred from receiving an inheritance through intestate succession. The most common is when a person committed elder abuse against the decedent. The law would deem that person to have died before the decedent.

 

- If a person dies within 120 hours after the decedent died, the law would deem that person to have died before the decedent.  For example, assume a husband and wife are in a car crash. The husband -- who does not have a will -- dies instantly, but the wife dies in the hospital two days later. It's indisputable that she died after him, but when the husband's estate is probated, her estate will receive nothing.

 

- Property given to an heir during lifetime is not counted as an advancement on that heir's inheritance once the gifter dies unless: (a) the gifter stated in writing that it was an advancement, or (b) the heir acknowledges in writing that it was an advancement.

 

Some unfair results of this process

 

- The results of intestate succession are often not what the decedent would have wanted or what the heirs were expecting. That's a recipe for serious infighting -- and protracted litigation. 

 

- Intestate succession doesn't give any inheritance rights to unmarried partners, life-long best friends, or the "she was his favorite" type of relative.

 

- Intestate succession does not discriminate between heirs who cared for and supported a decedent, and those who were deadbeats and abandoned a decedent.


 

 

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