What Happens to Probate Property if You Die
Without a Will?
Below are general examples of property distribution schemes that show how state
laws direct the distribution of a person’s probate estate when that person dies
without a will. These state statutes vary significantly, however; be forewarned that
they contain important details not covered here.
MARRIED WITH CHILDREN Many people
wrongly believe that a surviving spouse
will inherit all property owned by the
deceased spouse, especially if they have
young children. That is generally 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 their age.
The court appoints a guardian of the children’s property until they reach legal
adulthood. Even when the surviving parent continues to have custody of the kids
this property guardian is not always the parent. This arrangement may leave the
surviving parent without adequate resources of her own, forcing her to
repeatedly justify childrearing expenses to the court in order to get money for
them. If an adult child of the decedent has also died, that child’s children—that is,
the decedent’s grandchildren—would inherit their parent’s share to split.
MARRIED WITH NO CHILDREN OR GRANDCHILDREN In some states, the
surviving spouse will inherit the entire estate in this situation—or everything up to
a certain value (for example, the first $200,000). In many other states, however,
the surviving spouse receives only a specified interest in any real estate owned
by the decedent (such as “one-half,” or “one-third”). In addition to that value, the
surviving spouse usually gets only one-half of the remaining estate. The balance
generally goes to the decedent’s parent(s), if they are still alive. If both parents
are dead, many states split the remainder among the decedent’s brothers and
SINGLE PERSON WITH CHILDREN When a single person with children dies
without a will, all state laws provide that the entire estate go to the children, in
equal shares. If an adult child of the decedent has also died, that child’s children
(the decedent’s grandchildren) split their parent’s share.
SINGLE PERSON WITH NO CHILDREN OR GRANDCHILDREN In this situation,
most state laws favor the decedent’s parent(s) in the distribution of his property.
If both parents are deceased, many states divide the property among the
brothers and sisters. In some states, the decedent’s brothers and sisters are
ahead of the parents in the distribution order.
From “AARP Crash Course in Estate Planning: The Essential Guide to Wills,
Trusts and Your Personal Legacy,” by Michael T. Palermo, JD, CFP, 2005, pp.
Genwich Life Services LLC
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