Rules of Intestacy

What are the Rules of Intestacy?

If a person passes away without a valid will, all the assets in their estate must be distributed to beneficiaries according to legal guidelines known as the rules of intestacy. In these cases, only married or civil partners, along with some other relatives, are able to inherit intestate assets.

Intestacy can also occur if someone has a will that has been deemed invalid according to the law. In this case, the court will follow the rules of intestacy to distribute the property, which may or may not be according to the wishes expressed by the decedent in the will.

If you’re wondering what happens if you die without an estate plan, learn more about the rules of intestacy and find out how to ensure your family is protected in the event of your death.

1990 Uniform Probate Code

The 1990 Uniform Probate Code serves as a general guideline for intestacy, but each state can have additional laws in place for how assets are distributed.

Under the 1990 Uniform Probate Code, the closest relatives inherit assets instead of distant relatives or friends designated by the decedent. Generally, this begins with the surviving partner, descendants, parents, descendants of the parents, such as siblings, nephews or nieces, grandparents and descendants of the grandparents, such as uncles, aunts and cousins.  Children who were adopted are treated as biological children, provided the adoption is legal. If there are no legal descendants, the estate goes to the state by default, which is known as “escheats.”

Married Partners and Civil Partners

Under the rules of intestacy, married partners and civil partners may inherit the deceased spouse’s property if they are legally married or in a civil partnership at the time of death. If you’re divorced or the partnership has been ended at the time of death, however, the surviving spouse will not inherit any of the deceased spouse’s property. Partners who are informally separated may still inherit property, provided they’re not legally separated.

The surviving spouse inherits the entire estate if there are no surviving parents and all the surviving children are from both the decedent and the surviving spouse.

If the decedent’s parent or parents survive but there are no surviving children, the spouse inherits $200,000 of the estate, as well as three-quarters of the remaining assets.

If the decedent is survived by children who are also descendants of the surviving spouse and the decedent and the surviving spouse also has any surviving descendents who are not also descendents of the decedent, the surviving spouse inherits $100,000 of the estate, as well as one-half of the remaining assets.

Descendants and the Right of Representation

If a decedent leaves behind no surviving spouse, but has direct descendants, the descendants inherit the entire estate under the right of representation. The right of representation gives the descendants of the beneficiary who passed away the right to collect the property originally intended to go to another decedent, in this case, the surviving spouse.

Surviving Parents

If a decedent has no surviving spouse or descendants, all property is distributed to the decedent’s surviving parents equally. In the case of only one surviving parent, the entire estate goes to the sole surviving parent. This is another example of the right of representation, since the estate would originally be intended for the surviving spouse or surviving children, but none exist.

Other Relatives

In the case of a decedent with no surviving spouse, descendants or parents, the entire estate goes to the biological or legal siblings of the decedent. If there are no surviving siblings, the entire estate passes to the siblings’ children. If there are no children, the estate goes to the decedent’s grandparents or their descendants.

Net Estate

The entire estate left to the surviving descendants is the “net estate,” which is what’s remaining after all debt, taxes, protections and administrative costs are paid. Protections may include family allowances, homestead allowances and exempt allowances.

Jointly Owned Property

Jointly owned property comes in two forms: with rights of survivorship and without rights of survivorship.

Jointly owned property with rights of survivorship means that two or more individuals own the account or real estate together, so if one owner dies, the remaining owner fully owns the property. A special type of ownership with rights of survivorship between married couples is “tenancy by the entirety” in some states, while “community property” is another type of joint ownership in other states.

Jointly owned property without rights of survivorship means that two or more individuals own a percentage of the account or real estate together. Joint ownership without rights of survivorship is often referred to as owning the property as “tenants in common.”

In the case of intestacy, tenants in common property, or property without rights of survivorship, will go through court-supervised probate to determine the distribution among heirs. Nonprobate assets include property owned jointly with the rights of survivorship, including tenancy by the entirety and certain community property.

In some cases, property is “title by contract,” which means that the property has a beneficiary named on the title to receive the property after the owner’s death. This often means bank accounts or investments that have “transfer on death,” “payable on death” or “in trust for.” Life insurance, retirement accounts such as IRAs, 401(k)s and annuities, and life estates that have transfer on death or beneficiary deeds.

Get Estate Planning Help

With so many rules of intestacy, you can see why it’s so important to have a valid estate plan in place to protect your loved ones in the event of your death, especially if you have many qualified descendants and a lot of assets.

If you need help planning your estate, Tanko Law can help. We’ve been providing the best in probate services, estate planning, wills and trusts since 1995, so we’re sure we can offer you the best legal advice and services to ensure your loved ones are cared for after loss. Contact us today to schedule your consultation for your estate planning!

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