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What happens if I die without a Will (Intestate)?

If you fail to execute a valid Will, all decisions relating to your probate estate will be determined the law of the State of your domicile. This can be both good and bad.


The good part about dying intestate is that it is very likely that your family will receive your probate assets. Many people believe that, without a Will, the State will take their assets. This is simply not true.


State law requires a search for "heirs-at-law." Generally speaking, your heirs-at-law are your spouse, children, parents, siblings, nieces and nephews, and so on. Therefore, unless you are the absolute "last in line," someone within your family will receive your probate assets. If you are the "last in line," your probate assets may, at that point, be distributed to the State in whatever way is prescribed by State law.


The bad part about dying intestate is that you do not get to decide to whom your probate assets are distributed.


First, your surviving spouse is unlikely to receive all of your probate assets if you have children. The laws of most States require that a surviving spouse share the probate assets with the deceased spouse's children. Additionally, the law will oftentimes give different shares to the children if (1) the children are from a previous marriage; and (2) the children are minors.


If you have no children, your surviving spouse still may not receive all of your probate assets. Instead, the law of some States requires that your spouse share your probate assets with your surviving parent(s). Will your spouse remember you fondly if this were to happen?


If you have no surviving spouse but you do have surviving children, your surviving children will share your probate estate equally. If you have a deceased child who had children of his/her own, that deceased child's share will be distributed in equal shares to his/her surviving children (this type of distribution is referred to as "per stirpes").


If you die without a surviving spouse and you have no surviving children, then, the law of many States will require distribution to your surviving parents or, if you have no surviving parents, to your surviving siblings, per stirpes. State law just continues to search for your closest living "heirs-at-law."


Stay tuned for next week's post where I will move into other planning techniques. Specifically, I will start to talk about the use of Revocable "Living" Trusts in estate planning.

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