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  • DYING WITHOUT A WILL

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    POSTED: FEBRUARY 2013

    If you’re settling the estate of a deceased person who hasn’t left a will, you probably have more than a few questions about how the estate will be distributed. First, it’s important to understand that many kinds of assets aren’t passed by will, such as:

     -  life insurance proceeds 

    - real estate, bank accounts, and other assets held in joint tenancy, tenancy by the entirety, or community property with right of survivorship 

     - property held in a living trust 

     - funds in an IRA, 401(k), or retirement plan for which a beneficiary was named

    •  - funds in a payable-on-death (POD) bank account, and
    • stocks or other securities held in a transfer-on-death (TOD) account

    To find out who inherits these types of property, you’ll need to locate the documents in which the co-ownership or beneficiary designation was established.

    To find out who inherits other assets — generally, solely-owned property for which no beneficiary has been formally named, such as a house — you’ll need to consult state law. Every state has “intestate succession” laws that parcel out property to the deceased person’s closest relatives.

    Who’s in Charge?

    When there is no will to name an executor, state law provides a list of people who are eligible to fill the role. If a probate court proceeding is necessary, the court will choose someone based on that priority list. Most states make the surviving spouse or registered domestic partner, if any, the first choice. Adult children are usually next on the list, followed by other family members.

    Who Gets What: The Basic Rules of Intestate Succession

    Every state has laws that direct what happens to property when someone dies without a valid will and the property was not left in some other way (such as in a living trust). Generally, only spouses, registered domestic partners (in states where that’s an option), and blood relatives inherit under intestate succession laws; unmarried partners, friends, and charities get nothing. If the deceased person was married, commonly the surviving spouse gets the largest share. If there are no children, the surviving spouse often receives all the property. More distant relatives inherit only if there is no surviving spouse or children. In the rare event that no relatives at all can be found, the state takes the assets.

    All states have rules that bar certain people from inheriting if they behaved badly toward the deceased person. For example, someone who criminally caused the death of the deceased person is almost never allowed to profit from the death. And, in many states, a parent who abandoned or refused to support a child, or committed certain crimes against a child, cannot inherit from that child.

    If an Heir Has Died

    Obviously, an heir who has died can’t inherit. But if the heir was a close relative, such as a child of the deceased person, his or her offspring may be entitled to take some or all of what their parent would have received. Figuring out whether this is the case can be tricky, but it’s essential that you do so before distributing assets.

    Survivorship Requirements

    To inherit under intestate succession laws, an heir may have to live a certain amount of time longer than the deceased person. In many states, the required period is 120 hours, or five days. In some states, however, an heir need only outlive the deceased person by any period of time — theoretically, one second would do. Many states have adopted a law (the Uniform Simultaneous Death Act) that says for purposes of inheritance, each person is treated as if he had survived the other. Check your state law to learn the rules in your state.

    Rights of a Deceased Heir’s Descendants

    Intestacy laws often provide that if one of a group of heirs has died, his or her children inherit their parent’s share. In other words, they take the place of the parent. According to this concept (called the “right of representation”), when it comes to inheritance, children (or, in some cases, grandchildren) stand in the place of their deceased parent. Figuring out exactly who should inherit can be complicated depending on state law.

    Taking Care of Minor Children

    Parents who have young children and who make a will typically name someone to serve as the personal guardian of their children. But if a guardian is needed and there’s no will, how does a judge know whom to appoint? In that situation, the court will appoint a guardian. The judge will gather as much information as possible about the children, their family circumstances, and the deceased parents’ wishes and try to make a good decision. The primary rule is that the judge must always act in the best interests of the children.

    NOTICE: The content on this website does not constitute legal advice and is used at your own risk. Consult professional legal counsel for advice.

    Jennifer
    Feb 13, 2017
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