The Intestate Estate—What Happens When There Is No Will?

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Creating a will should be the first step in a comprehensive estate planning process, since it allows you to make sure that your wishes are properly carried out after your death.

A will is an invaluable document that lays out how you want your personal and financial assets dispersed after your passing. It helps to provide for the people and causes you care about most. It also enables you to designate a trusted individual, known as the “executor,” to manage your estate in line with your directives. So what happens if someone dies with a will? There’s a legal term for it: dying “intestate.” This refers to someone who has passed away without having a will in place.

Here’s why it’s important: let’s consider the situation where a married individual with children passes away intestate. This can unintentionally create a lot of difficulties for their family. Though any jointly owned property, including real estate, investments, and accounts, will automatically transfer to the surviving spouse without going through probate, any separately owned assets will have to go through the probate process. In states like Texas, this implies that only a third of the property will go to the surviving spouse, with the remainder divided amongst the children. This can prove challenging if the children are minors, as the funds are held in an account accessible only with court approval. This could potentially leave the family financially strained if they heavily depended on those assets.

Similarly, if a married person without children or grandchildren passes away without a will, their separate property could be split between their parents and surviving spouse. Jointly owned property and community property, however, will go to the surviving spouse.

For single individuals with children, in the absence of a will, state law will distribute the decedent’s assets equally among the surviving children. If an adult child predeceases the parent, their share will be divided among their children, i.e., the decedent’s grandchildren. But if the children are minors, the funds will be under court control and supervision.

A single person without children, in the absence of a will, would typically have their assets distributed to their surviving parents. If the parents are deceased, the assets will go to the decedent’s siblings, or to nieces and nephews if the siblings have also passed away. The state uses a consanguinity chart to determine the distribution, which can even extend to distant cousins who may not have had any contact or knowledge of the deceased.

In cases where there are no surviving family members, the decedent’s assets generally escheat to the state.

In the case of unmarried couples, the surviving partner is not recognized under the state law when one of them dies without a will. The law will treat the deceased as a single individual, and the surviving partner won’t inherit anything.

The potential pitfalls of not having a will in place highlight the vital role of a skilled estate planning attorney. They can help you craft a will and related documents that reflect your exact wishes, ensuring your estate is handled as you intend. Without a will, the distribution of your estate will be subject to state law, which may not align with your preferences. Protect yourself and your loved ones by creating a will.

If you or a loved one needs assistance with elder lawprobate or estate planning issues, do not hesitate to BOOK A CALL using our calendar. We are here to help.