Will your assets be distributed by the government if you don’t have a will?
If you die and leave no will, the state you live in will determine what happens to your property. Each state has its own rules and own ways of doing things, but all of them have rules for how property is passed on when a person dies. A will makes it fairly straightforward. It is more complex when there is no will, which is called dying intestate. If the person is married, the property goes to the spouse in most cases, but there are exceptions. There are also exceptions to how some property is dealt with in each state.
When a person dies you still have to go to the probate court, which is where a deceased person’s property is legally transferred to someone else. If there is a will, the executor named in the will is recognized and the property is distributed according to the instructions in the will. When there is no will, the state becomes the executive who distributes the property. Each state has its own rules, but generally, the property is given to the closest living relative that can be found.
There are exceptions to the state determining where some property goes when a person dies intestate. If there are named beneficiaries they will receive the property. If there are co-owners of the property, the partner will get the property in most cases. Things like an IRA account, life insurance policies with a named beneficiary, or similar items, are not subject to intestate laws.
When you die without a will, a lot depends on your family situation. Everyone is different, and every state has different ways of going about disposing of the property. If you are single and have children, your children will get your property. If you have no children your parents will get everything, and if parents are not living it will go to siblings.
If you are married with no children your spouse will inherit everything. It gets complicated if there are children involved, adopted children, or other types of situations. The state gives a percentage to each, and the spouse gets a percentage as well.
In many states, if you are living with someone, but not legally married, they will get nothing if you die without a will. With a will, you may leave everything to that person, but without one they have no legal standing. Only blood relatives are considered by the state.
If you die without a will and have no living relatives the state will get your property. The state will, however, try to find a living relative who is related by blood, to settle your estate. If no immediate family members can be found, aunts, uncles, and cousins will be sought. A half brother or sister is also considered a blood relative.
If the property is to go to minor children, it will be divided equally in most cases between all your legal children. This can include adopted children, children placed in adoption, and children born outside of marriage. Foster children and children who have not been legally adopted will not get a share.
In addition to the distribution of property, questions like who will manage that distribution, or who will be the guardian of your children, are also part of the picture. With no will, the state will make those decisions.
In some cases, you may own property in more than one state. In those cases, a “domicile state” is determined based on where you pay taxes or make most of your income. A domicile state is your official place of residence, and that state would be where your property would be divided in probate.
This is fairly straightforward when the property is land or a home, or assets in a bank. When it is something like art, it can get complicated, but the property will generally be taken care of in probate where the person lived. If there is real estate in more than one state, you will have to have probate in both states where the property is located. There are different kinds of property, such as community, real estate, and so forth, and there may be different rules for each.
To avoid probate in multiple states, you could own the property with another person, or put the property in a living trust, or have a transfer on death deed.
It can get complicated if there is a property in more than one state, or if there is a complicated family situation. The simplest solution is to have a will in place before you die. If you have a deceased relative and are concerned about how their estate will be divided where there is no will, see a probate attorney to discuss the particulars of your situation. A probate attorney will be very familiar with the laws of that particular state and can advise you of the best course of action.
