Dying Without A Will

The importance of preparing a will cannot be overstated. This section will discuss what happens if a person dies without a will.

What happens to my property if I die without a will?

Each state has “intestacy” statutes that determine who will receive your property at death if you die without a will. Under these laws (which vary from state to state), your property will pass to your surviving spouse and other relatives. If you want to leave some of your property to a friend or to a charitable organization, you must execute a will.

Your spouse and children

Here is what most states will do with your property if you die without a will.

If you are survived by a spouse and children, all of your estate will be divided among them, with your spouse getting half your property if you have only one child and the child getting the other half. If a spouse and more than one child survive you, your spouse will get only one third of your estate and the other two-thirds will be divided among your children.

Most husbands and wives who have small or modest estates prefer to leave all or substantially all of their estate to their surviving spouse. Consequently, state mandated intestacy laws do not carry out the intent of the deceased. A will is needed. In community property states, the law treats widows and widowers more generously by giving them all of the community property accumulated during the marriage and dividing only separate property between the surviving spouse and children.

Keep in mind that when we talk of a surviving spouse, we do not mean a former spouse or a current domestic partner. In order to take as a spouse under the laws of intestacy, your spouse must be married to you at the time of your death. So if you want to leave some of your property to your domestic partner, you must execute a will.

Your children and grandchildren

If you are survived only by children and grandchildren (no surviving spouse), your estate will be divided equally among your children. If one or more of your children has died before you leaving children surviving – your grandchildren – those grandchildren take the share of your estate that would have passed to their deceased parent (your child).

Your parents, siblings, and other relatives

If you are survived by neither a spouse nor by children nor grandchildren, your estate will generally pass to your parents, if they are alive, and, if not, to your siblings – your brothers and sisters. If some or all of your siblings have died before you, their children – your nephews or nieces – will take the share of their deceased parent. If the closest relatives who survive you are aunts and uncles, they or their children – your cousins – will get your estate.

If you have no relatives

If no relatives survive you, your property will “escheat” to the state, i.e., the state government gets it all.

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