What Happens When a Person Dies without a Will?
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What Happens When a Person Dies without a Will?
When a person dies without having arranged for the disposition of some portion of his or her property, that decedent is said to have died intestate to such property—that may be all or only some of the total estate. State law sets out a distributional scheme by which the intestate property is transferred.
Things To Know
- Property disposition can be arranged not only through a will but also with a trust or other alternative.
- Most states provide an allowance to be set aside for the surviving spouse and children.
Post-death property disposition can be arranged not only through a will but also with a trust or other alternatives to probate. For example, life insurance proceeds and retirement accounts pass to whomever is named on a beneficiary designation form. A will generally does not cover these assets. Additionally, married couples frequently own property jointly with right of survivorship—upon the death of one spouse, the survivor automatically takes the deceased spouse’s share.
Allowances for survivors
Most states provide an allowance to be set aside for the surviving spouse and children whether there is a will or not. This is usually a modest exemption free from any claims against the estate or debts of the decedent. These survivors take a specified amount "off the top" of the estate before the creditors, heirs, and beneficiaries line up to receive their shares of what remains under the will or rules of intestacy distribution. These allowances vary greatly among states. If there is no will, many states also give the surviving spouse a specified interest in any real estate owned by the decedent (e.g., one half of a life estate).
The following general property distribution scheme may be helpful to show what happens to one’s probate estate if he or she dies without a will. State laws vary greatly, however, and contain significant details not covered here.
Scenarios of intestacy
What happens if you die without a will while you are:
- Married with children? Many people falsely believe that the surviving spouse takes all the deceased spouse’s property, especially if the children are young. That is not the case. In this situation, the law of most states awards one third to one half of the decedent’s property to the surviving spouse and the remainder to the children regardless of age.
- Married with no children? Most states give only one third to one half of the estate to the survivor. The remainder generally goes to the decedent’s parent(s), if alive. If both parents are dead, many states split the remainder among the decedent’s brothers and sisters.
- A single person with children? When a single person with children dies without a will, state laws uniformly provide that the entire estate go to the children.
- A single person with no children? Most state laws favor the decedent’s parent(s) in the distribution of his or her property. If both parents are deceased, many states divide the property among the brothers and sisters.
When a person dies, his or her property must be transferred via some legal mechanism. If the decedent has died intestate to an asset, state law determines how it will pass.