What Happens If a Person Dies Without a Will?
When a person dies without a will, the results may not be what they expect. The disposition of his or her estate will be made pursuant to state statute, and may lead to absurd results such as property eventually being jointly owned by the decedent’s parents and widow’s second spouse. This article outlines what happens when a person dies without a will, provides examples of the problems that can arise, and encourages the reader to draft a will.
This article was first published at the Texas Agriculture Law Blog at http://agrilife.org/texasaglaw
What Happens If a Person Dies Without a Will? Frequently, people believe that a will is not necessary because, upon death, all of the deceased assets will pass to his or her spouse. This is inaccurate, and can lead to serious problems for the family left behind. Intestate Succession Statutes If a person dies without a will, every state has statutes (called “intestate succession statutes”) that control the distribution of that person’s estate. (Importantly, not all assets pass through an estate. Life insurance policies for which a beneficiary is named or accounts held in joint tenancy are examples of assets that would pass via those contracts and would not be subject to intestate succession statutes.) Essentially, if a person dies without directing how his or her estate should be distributed, the state’s legislature will decide for the deceased person by statute. These statutes can be complex and may lead to results the decedent never would have foreseen or desired. This is not surprising given the fact that family relationships and dynamics differ greatly for each person, yet when a person dies without a will, the same statutory standards apply to everyone. Furthermore, going estates distributed by intestate statutes will likely cause the probate process to be more expensive and time consuming. An administrator appointed by the court will be forced to spend time and money searching for all possible heirs who will be entitled to inherit under the statute. A Few Examples In order to help explain how intestate succession statutes work (and to encourage everyone reading this to draft a will rather than rely upon these statues), here are a few sample scenarios. Let’s suppose that a husband dies without a will in Texas. All of his property does not go to his wife. Instead, the following will occur based upon the Texas instate succession statute. If the husband was married with no children, his wife would get all of the community property, all of the separate property, but only 1/2 of the separate real property. The other 1/2 of the separate real property would be given to the husband’s parents in equal shares. Here is an example of how this could play out: Suppose that the husband inherited a ranch from his grandfather. That ranch would be separate real property. Under the intestate succession rules in Texas, his wife and in-laws would each own 1/2 of the ranch. This could pose a problem if the wife did not get along well with her in-laws or if the decedent’s parents were estranged from each other. The problem could further be exacerbated if the wife were to remarry and execute a will that left everything to her second husband. Upon the wife’s death, the ranch would then be owned ½ by the first husband’s parents and ½ by the wife’s second husband. This could certainly pose serious problems for the family. If the husband was married with children, his wife would get 1/3 of the separate personal property and the children would get 2/3. For the separate real property, his wife would get 1/3 as a life estate and the ownership and remaining 2/3 would go to his children. For his share of the community property, if the husband’s children are also the wife’s children, she gets all of the community property. If, however, the children were step-children and not the wife’s children, the husband’s 1/2 share of the community property would go to the children. Again, this could pose a serious problem in certain families. Under this statute, 1/2 of a couple’s personal assets would be owned by the surviving spouse’s step-children. In the event there was not a good relationship, this, too, could cause serious problems for the surviving family. Take Away Message If a person dies without a will, that person’s property does not all automatically go to his or her surviving spouse. It is extremely important to have a will that directs the disposition of all property upon death. Without a will, intestate statutes will be applied to an estate and may cause not only undesired, but disastrous, results for the family that that is left behind.
Report Note close
Firefox recommends the PDF Plugin for Mac OS X for viewing PDF documents in your browser.
We can also show you Legal Updates using the Google Viewer; however, you will need to be logged into Google Docs to view them.
Please choose one of the above to proceed!
LOADING PDF: If there are any problems, click here to download the file.