The importance of preparing a will cannot be overstated. This section will discuss what happens if a person dies without a will. Each state has “intestacy” statutes determining who will receive your property at death if you die without a will.
Under these laws (which vary from state to state), your property will pass to your surviving spouse and other relatives. If you want to leave some of your property to a friend or a charitable organization, you must execute a will.
The intestate succession laws in most states
One spouse predeceases the other spouse and their children
If a spouse and children survive you, all of your estates will be divided among them, with your spouse getting half your property if you have only one child and the child getting the other half. If a spouse and more than one child survive you, your spouse will get only one-third of your estate, and the other two-thirds will be divided among your children.
Modest estates
Most husbands and wives with small or modest estates prefer to leave all or substantially all of their estates to their surviving spouse. Consequently, state-mandated intestacy laws do not carry out the intent of the deceased. A will is needed. In community property states, the law treats widows and widowers more generously by giving them all of the community property accumulated during the marriage and dividing only separate property between the surviving spouse and children.
Keep in mind that we do not mean a former spouse or a current domestic partner when we talk of a surviving spouse. To take as a spouse under the laws of intestacy, your spouse must be married to you at the time of your death. So if you want to leave some of your property to your domestic partner, you must execute a will.
Survived only by your children and grandchildren
If you are survived only by children and grandchildren (no surviving spouse), your estate will be divided equally among your children. If one or more of your children has died before you leave children surviving – your grandchildren – those grandchildren take the share of your estate that would have passed to their deceased parent (your child).
Extended chain succession
If you are survived by neither a spouse nor children or grandchildren, your estate will generally pass to your parents if they are alive. If not, then to your siblings. If some or all of your siblings have died before you, their children – your nephews or nieces – will take the share of their deceased parent. If the closest relatives who survive you are aunts and uncles, they or their children – your cousins – will be the heirs to your estate.
With no intestate heirs and no named beneficiaries
If no relatives survive you, your property will “escheat” to the state, i.e., the state government gets it all.
