What Happens to Property if There is No Will?
Provided by HG.org
If you have lost a loved one, there are many things on your mind, not the least of which may be what to do with the belongings that have been left behind. Sadly, family can become very attached to different items that may bear a sentimental value to them, or feel entitled to a portion of the estate's value. These problems can be greatly magnified in situations where there is no will.
First, it is important to understand that some assets pass in certain ways regardless of whether there was a will or not. For example:
A. Life insurance proceeds
B. Real estate, bank accounts, or other assets held in joint tenancy, tenancy by the entirety, or community property with a right of survivorship
C. property held in a living trust
D. funds in an IRA, 401(k), or retirement plan for which a beneficiary was named
E. funds in a payable-on-death (POD) bank account
F. stocks or other securities held in a transfer-on-death (TOD) account
The distribution of these assets is determined by documents in which the co-ownership or beneficiary designation was established, such as insurance policies, deeds, etc.
Determining who inherits other assets you will need to consult state law. Your best option will be to contact an experienced trusts and estates attorney who can help you understand your state's unique laws and move the process of distribution ahead for you.
Every state has laws governing "intestate succession," or how assets are distributed in the absence of a will (or in absence of a reference to the asset in a will). When there is no will to name an executor or personal representative of the estate, state law provides a list of people who are eligible to fill the role. If a probate court proceeding is necessary, the court will choose someone as the executor based on the priorities set out in the state law. Most states make the surviving spouse (or registered domestic partner where recognized) the first choice, followed by adult children and other family members.
Generally, only spouses/partners, children, and certain other blood relatives inherit under intestate succession laws. Girlfriends, boyfriends, friends, and charities have no right of inheritance. Usually a surviving spouse is entitled to the largest share, particularly if minor children are involved. In the absence of a spouse, children, whether minors or adults, usually get the largest share, and if no children, parents are normally next in line. More distant relatives inherit only if there is no surviving spouse or children. In the rare event that no relatives at all can be found, the state takes the assets.
All states have rules that bar certain people from inheriting if they behaved badly toward the deceased person. For example, a murderer will not be entitled to inherit from his victim's estate. Similarly, in most states a parent who abandoned his/her child, failed to pay support payments, or abused the child will not be able to inherit from the child's estate. Note, the term “child” can refer to an adult offspring as well as a minor.
This line of succession becomes clouded, as well, in circumstances like legal separation or pending divorce, in situations of “common law marriage” (where recognized), or in situations where same-sex marriage is gaining recognition but has not yet gained a fully recognized legal foothold. Similarly, adopted children can become confusing, but, in the absence of a will or other estate plan, legally adopted children generally inherit from their adoptive parents just as biological children do. Stepchildren, on the other hand, generally do not meet the definition of “children” for purposes of inheritance. Similarly, foster children do not normally inherit as "children" of the foster parents.
Intestacy laws often provide that if someone who otherwise would have inherited has died, his or her children may inherit their parent's share if there is not other closer relative in the line of succession.
Parents who leave young children and who make a will typically name someone to serve as the personal guardian of their children. But, if a guardian is needed and there is no will, the court will appoint a guardian. The judge will gather as much information as possible about the children, their family circumstances, and the deceased parents' wishes and try to make a good decision. The court will attempt to give custody of the children to the closest surviving family member who will provide a safe and stable home and is willing to take the children. If none is available, the minor children may be put into foster care.
If you have questions about how the estate of a departed loved one should be distributed in the absence of a will, you should consult with a qualified, experienced attorney who can help you navigate the local intestate succession laws for your state.
Copyright HG.org - Google+
Disclaimer: While every effort has been made to ensure the accuracy of this publication, it is not intended to provide legal advice as individual situations will differ and should be discussed with an expert and/or lawyer. For specific technical or legal advice on the information provided and related topics, please contact the author.
A. Life insurance proceeds
B. Real estate, bank accounts, or other assets held in joint tenancy, tenancy by the entirety, or community property with a right of survivorship
C. property held in a living trust
D. funds in an IRA, 401(k), or retirement plan for which a beneficiary was named
E. funds in a payable-on-death (POD) bank account
F. stocks or other securities held in a transfer-on-death (TOD) account
The distribution of these assets is determined by documents in which the co-ownership or beneficiary designation was established, such as insurance policies, deeds, etc.
Determining who inherits other assets you will need to consult state law. Your best option will be to contact an experienced trusts and estates attorney who can help you understand your state's unique laws and move the process of distribution ahead for you.
Every state has laws governing "intestate succession," or how assets are distributed in the absence of a will (or in absence of a reference to the asset in a will). When there is no will to name an executor or personal representative of the estate, state law provides a list of people who are eligible to fill the role. If a probate court proceeding is necessary, the court will choose someone as the executor based on the priorities set out in the state law. Most states make the surviving spouse (or registered domestic partner where recognized) the first choice, followed by adult children and other family members.
Generally, only spouses/partners, children, and certain other blood relatives inherit under intestate succession laws. Girlfriends, boyfriends, friends, and charities have no right of inheritance. Usually a surviving spouse is entitled to the largest share, particularly if minor children are involved. In the absence of a spouse, children, whether minors or adults, usually get the largest share, and if no children, parents are normally next in line. More distant relatives inherit only if there is no surviving spouse or children. In the rare event that no relatives at all can be found, the state takes the assets.
All states have rules that bar certain people from inheriting if they behaved badly toward the deceased person. For example, a murderer will not be entitled to inherit from his victim's estate. Similarly, in most states a parent who abandoned his/her child, failed to pay support payments, or abused the child will not be able to inherit from the child's estate. Note, the term “child” can refer to an adult offspring as well as a minor.
This line of succession becomes clouded, as well, in circumstances like legal separation or pending divorce, in situations of “common law marriage” (where recognized), or in situations where same-sex marriage is gaining recognition but has not yet gained a fully recognized legal foothold. Similarly, adopted children can become confusing, but, in the absence of a will or other estate plan, legally adopted children generally inherit from their adoptive parents just as biological children do. Stepchildren, on the other hand, generally do not meet the definition of “children” for purposes of inheritance. Similarly, foster children do not normally inherit as "children" of the foster parents.
Intestacy laws often provide that if someone who otherwise would have inherited has died, his or her children may inherit their parent's share if there is not other closer relative in the line of succession.
Parents who leave young children and who make a will typically name someone to serve as the personal guardian of their children. But, if a guardian is needed and there is no will, the court will appoint a guardian. The judge will gather as much information as possible about the children, their family circumstances, and the deceased parents' wishes and try to make a good decision. The court will attempt to give custody of the children to the closest surviving family member who will provide a safe and stable home and is willing to take the children. If none is available, the minor children may be put into foster care.
If you have questions about how the estate of a departed loved one should be distributed in the absence of a will, you should consult with a qualified, experienced attorney who can help you navigate the local intestate succession laws for your state.
Copyright HG.org - Google+
Disclaimer: While every effort has been made to ensure the accuracy of this publication, it is not intended to provide legal advice as individual situations will differ and should be discussed with an expert and/or lawyer. For specific technical or legal advice on the information provided and related topics, please contact the author.
