Death is inevitable, yet many people do not adequately prepare for their loved ones after their exit. When a person dies, their estate, referring to their property, assets, and liabilities, undergoes ‘probate.’ This legal process validates the deceased’s existing will (if there is one) and appoints a personal representative or executor to manage the distribution of assets according to the deceased’s wishes.

During probate, debts and taxes owed by the deceased are settled, and the remaining assets are distributed to the heirs or beneficiaries. The process can vary in complexity depending on factors like the presence of a will, the size of the estate, and any potential disputes or legal challenges that may arise.

However, if there’s no will, state laws of intestate succession come into play to determine how the estate will be distributed among the deceased’s closest relatives.

Case Study 

For instance, Kaydence, a father of two, aged 45 years, suddenly passes away without a will, leaving behind his spouse, Latasha, and their two children, Rayna and Jeremiah. According to state laws, the surviving spouse, Latasha, is entitled to the most significant estate share. In comparison, Rayna and Jeremiah will inherit equally from their father’s portion. In this case, the Cox family estate will be distributed accordingly, ensuring their rights are protected.

However, in other cases, the situation can become complicated. Despite their wealth, many famous stars have died without a will, leaving their estates in disarray. Aretha Franklin, Prince, and Bob Marley are some of the celebrities who are typical examples. In Aretha Franklin’s case, her four sons and niece had to file court documents to determine her estate’s handling.

After Prince’s death, numerous claimants and legal disputes ensued over his multimillion-dollar estate and were eventually resolved after many years of a legal battle. Bob Marley’s lack of estate planning led to decades of court battles, with his wife and children finally receiving his assets.

These cases emphasize the importance of having a proper will to ensure a smooth and orderly distribution of assets after death.

According to data from the Congressional Budget Office (2021), over 53% of Americans didn’t have a will despite the potentially damaging consequences for their heirs. Several millions of Americans haven’t written a will. Such a lack of estate planning can lead to complications and disagreements among family members during the inheritance process.

The Reality of Loss 

Loss is the resultant effect of death, and losing a loved one is difficult. For the family members and others connected to the deceased, dealing with the distribution of their estate can be overwhelming, especially if they didn’t leave a will. Questions about the distribution of assets and the process can be daunting and controversial.

Thus, understanding intestate succession laws and planning is vital to avoid pointless challenges and ensure a smooth distribution of assets. Knowing the general guidelines for estate distribution under state laws can support making informed decisions during challenging times.

Understanding Intestate Succession

As previously mentioned, state laws determine who inherits the deceased’s property if no will exists. Additionally, some assets cannot be distributed through a Will and don’t undergo the probate process. Examples include life insurance proceeds, retirement funds with named beneficiaries, joint tenancy or community property assets, living trust holdings, and support with payable-on-death (POD) or vehicles or real estate with transfer-on-death (TOD) designations. Most asset beneficiaries are listed in the designation documents, with specific information on who will inherit the property. Notably, every state has intestate succession laws to determine who inherits property among the deceased person’s closest relatives.

Executor or Personal Representative

Without a will, state laws establish a priority list containing eligible individuals who can act as personal representatives or executors. The first choice can be the surviving spouse or registered domestic partner, then adult children, and finally, other family members; each state has its own rules for selecting the executor.

The basic rules follow the first choice, such as spouses, registered domestic partners, and blood relatives. In such cases, the surviving spouse usually receives the largest share, and more distant relatives inherit if there are no immediate family members. In extreme cases, the state may claim the assets without living relatives. State law does not protect the interests of unmarried partners, friends, or charities.

Interpreting Terminologies in Intestate Succession

When executing an intestate succession, terms’ definitions differ from one state to another. For instance, the terms “spouse,” “children,” and “issue” have different meanings.

Furthermore, specific rules govern the interpretation of the law. For instance, adopted children have similar inheritance rights to any biological child. The law differs from stepchildren or foster children to children born posthumously or outside marriage who can inherit an estate.

Specific Examples of Issues and State Law

In many state laws, the term “issue” determines who can inherit an estate without a will. It includes the deceased person’s descendants, like their children and grandchildren. Without a will or other estate plan, most states recognize legally adopted children, and they inherit from their adoptive parents as biological children do.

In the case of stepchildren, most states do not include the children from the deceased person’s spouse who were never legally adopted by the dead person for inheritance purposes. However, a few states may consider the case depending on the circumstances of the relationship. Most foster children are not eligible for inheritance as “children” of the foster parents.

Any adopted children by an unrelated adult or family cannot inherit from their birth parents, nor can their birth parents inherit from them under intestate succession law in most states. Placing a child for adoption cuts off the legal connection between the child and the birth parents. However, depending on state law, an adopted child can inherit from a stepparent and not from the biological parents.

When a child is conceived before a parent’s death but born after it, they inherit under intestate succession laws as a child/children born during the parent’s life. Children born to unmarried parents inherit mainly from their birth mother unless an unrelated family adopts them. If the parents were never married, usually the child must show some proof to inherit from the father.

In some states, a surviving spouse includes the surviving partner legally married to the deceased person at the time of death. However, suppose the couple was separated, or a divorce commenced before the spouse’s end.

In that case, a judge must determine if the surviving spouse qualifies as a spouse. Curiously, a few states recognize common-law marriages on the condition that the couple must be cohabiting and intending to get married and be recognized in society as married.

Married same-sex spouses are also legally recognized as having the same rights and responsibilities as other legally married people. However, in some states, couples registered as civil union partners (and not married) or domestic partners may not be entitled to all the rights and responsibilities of married people. In some states, registered domestic or civil union partnerships that result in marriages are recognized as legally married people.

Therefore, the state’s law and the relationship’s legal status determine if the union recognizes the surviving spouse. A deceased person’s heir can also be entitled to some or all of what their parent would have received.

However, to inherit under intestate succession laws, an heir must live longer than the deceased for a certain amount of time, such as five days or 120 hours, in most states. In other states, the heir must outlive the dead person by as little as one second. Yet many states have adopted the Uniform Simultaneous Death Act, which recognizes inheritance for each person as if he had survived the other.

Rights of a Deceased Heir’s Descendants

Intestate laws also provide that if one of a group of heirs has died, their children inherit their parent’s share by taking the place of the parent. According to the “right of representation” rule, children replace their deceased parents regarding inheritance.

In the case of minor children, parents often appoint a guardian for their little ones in their will. Still, if there is no will, the court will determine the children’s best interests and appoint a guardian based on the children’s circumstances and the wishes of the deceased parents.

While facing the loss of a loved one is never easy, planning can make things more manageable for the family. To ensure that one’s loved ones are fully insured, it is crucial to understand the state’s laws and create a will or estate plan to reflect one’s wishes. The act of seeking legal advice from an attorney is also vital for addressing any questions about the legal status of their relationship in the state. Get help from an attorney knowledgeable about this area of law and seek information on Intestate Succession relating to the specific state’s law of interest.

Questions? ASK THE LAWYER. Call 855-768-8845 or schedule an appointment at 855-768-8845. The lawyer you hire does make a difference!