Dying Without a Will: Your Inheritance Rights

Federal Gov Article, Jan 08, 2005

Dying Without a Will:Your Inheritance Rights

If a person does not have a will or has not adequately planned for the distribution of his or her estate at death, survivors may face a complicated, time-consuming, and costly process. Often survivors wind up having to pay more taxes on their inheritance than they would have paid had there been a will or other estate planning tool. To provide for surviving friends and relatives, or to support favorite causes or charities, a person should plan for the distribution of his or her estate after death. With planning, an estate can be distributed as fairly as possible with as little tax burden as legally allowed.

When a decedent leaves no will or other comparable estate planning tool, he or she is said to have died intestate. Jurisdiction over wills and trusts is in the superior court sitting in probate. When a person dies intestate, the probate court steps in to divide the decedent's estate, according to a formula provided by the state inheritance laws. Under the state inheritance laws, the probate court uses formulas set by the legislature to divide a deceased person's possessions among any surviving relatives.

A probate court applying the state inheritance laws first deducts from the estate the funeral expenses and any unpaid medical bills, taxes, family allowance expenses, and other debts owed. If the decedent was married, the surviving spouse receives all of the community property. If the decedent has a surviving spouse and no children, parents, siblings, nieces, or nephews, the entire estate, after these deductions, goes to the spouse. If there is one child, grandchild, parent, or sibling, the surviving spouse receives one-half of the intestate estate and the other surviving relative receives the other half. If there is more than one child, more than one grandchild, or at least one child and one grandchild, the spouse receives one-third of the intestate estate and surviving children and/or grandchildren receive equal shares of whatever is left of the estate after the spouse's share is deducted. If one of the decedent's children dies before the decedent, that child's share passes to his or her living descendants. Anyone entitled to inherit a portion of an intestate decedent's estate is known as an heir.

One problem with relying on a probate court applying state inheritance laws to distribute an estate is that it may not distribute the estate in the manner the decedent would have wanted. State inheritance laws only recognize relatives. The inheritance laws never permit the probate court to support a decedent's close friend, lover, or favorite charities. If no relatives are found, the estate goes to the state. Clearly, for most people writing a will or creating a trust is advisable.