Recognizing Intestate Succession: Who Begins to Own Your Property?

Intestate succession is the procedure used to transfer a person’s property when they die without leaving a will. States have different laws regarding intestate succession, but generally speaking, there is a set priority order for different kinds of heirs. Some assets pass automatically by title or deed, such as bank accounts and real estate owned in joint tenancy with rights of survivorship. Others must go through the probate process.

Parents

When a parent passes away without a will, their children inherit the estate according to state law. A surviving spouse or domestic partner also receives a portion of the estate. It includes biological children and adopted children. Parents and siblings inherit if the decedent has no surviving spouse or children. Next of kin order in California come the grandchildren of the deceased child and then more distant relatives. The assets are known as escheating to the state if no heirs exist. In some cases, people can rearrange how their property is shared after death, but this must be done within two years of their parent’s passing, and the court must approve it. An experienced estate and trust lawyer can help with this process.  It is important to note that while the term “heir” is commonly used, legally, only a beneficiary is an heir to a person’s estate. A will or other binding arrangement can designate an heir. A friend who is not a relative may be named a beneficiary and could receive some of the deceased’s property, but they are not an heir under intestate succession rules.

Spouse

Their state’s intestacy laws bind the executor of an estate who passes away without a will. This process involves taking an inventory of all the assets in the estate, paying any creditors, and distributing assets to heirs. Property and support jointly owned with a surviving spouse or have designated beneficiaries (such as life insurance policies and retirement accounts) pass outside of probate to the surviving co-owner or beneficiary. The probate process must be followed to determine who is entitled to other assets, such as those held in joint tenancy or tenancy by the entirety of another individual.

The order in which heirs are considered depends on the state. However, most states prioritize the surviving spouse over other blood relatives for all community property and a portion of separate property. Next are children, with siblings receiving a more minor part of the estate depending on the state. Finally, any remaining heirs are considered based on the relationship. For example, half-siblings are treated as full siblings, and stepchildren are not eligible to inherit.

Children

Intestate succession laws state children are entitled to a deceased parent’s property. The specific percentage of the estate that they receive can vary by state. Children include biological, adopted, or stepchildren. A dead person’s grandchildren may also inherit a portion of the estate. However, it’s important to note that not all children are considered heirs. The word heir is typically only used to describe family members. Still, the term beneficiary can be used for anyone who receives property as prescribed in a will, trust, or another arrangement. Many assets, like real estate held in joint tenancy or community property with survivorship rights, life insurance policies, and 401(k) accounts, must pass through intestate succession. You can avoid these situations by naming beneficiaries for these accounts and properties in your Will or trust. In addition, you can avoid the problems of heirs fighting over your property by dividing it among several people or giving it to charity. These arrangements can minimize the time and cost of probate for your loved ones. Ultimately, this can save your family money, stress, and court fees.

Siblings

If the deceased did not leave a will or their Will did not dispose of all property, intestacy laws dictate that siblings inherit a percentage of the estate. Siblings include children from a previous or current marriage and natural and adopted children. The regulations do not allow stepchildren to claim inheritance rights.

Siblings can conflict over inheritances, especially regarding real property such as a home or vacation residence. Physically dividing this type of property is impractical, and a private agreement between siblings can help resolve disagreements.

Intestacy laws also stipulate that the property will be escheated to the state if no family members can be found. It is rare and typically only occurs when the deceased did not make a will. Even then, heirs should discuss how they wish their property to be divided in advance of the death of a loved one. It can help prevent disputes and unnecessary legal fees and expenses for family members. Those who want to avoid such issues can use a will or trust to specify their wishes.

Nephews and Nieces

Although it may be rare, some people pass away without any living heirs. In this scenario, a probate judge will follow the state’s rules of intestate succession to determine who receives their estate. Generally, the first to inherit is a deceased person’s spouse and children. Next in line are parents and siblings, followed by aunts and uncles. Finally, nephews and nieces are considered. The closer a relative is, the more likely they are to inherit. Of course, a surviving spouse can permanently waive their inheritance right. They can also opt to leave their share to a charity. If they choose to do so, it’s best to list the charity in their Will. It avoids confusion and potential legal issues among loved ones during a difficult time.