In our last article, we looked at 4 Reasons You Need a Will. In this article, we examine what might happen if you die without a will.
Dying intestate means dying without a written will. Dying without a will can be complicated and stressful for your relatives, and it may result in your property being distributed in a way you would not have wanted. Intestacy laws vary from state to state, and generally, the intestacy laws of the state where you reside at the time of your death will determine how your personal and real property will be distributed. One exception is for real property owned in a state other than the one in which you reside at the time of your death. Such out-of-state property will be distributed according to the intestacy laws of the state where the property is located.
Most states distribute property in split shares to heirs, which include the surviving spouse, children, siblings, and other relatives. Generally, if a person dies with no known relatives, their property, both real and personal, will go to the state.
State laws vary, and you should always check the laws of your state, or consult with an attorney licensed in your state; however, by way of example, here are some common ways intestacy laws distribute property to heirs:
Single without children. If upon death, you have no children and are unmarried, your entire estate will pass to your surviving parents, if both survive you. If neither parent survives you, the estate will be split equally among your siblings. However, if one of your parents survives you, and you have siblings, your estate will be divided among that surviving parent and your siblings. If you have neither parents nor siblings living at the time of your death, your estate can pass to other relatives such as aunts, uncles, nieces, nephews, and cousins.
Single with children. If at death you are single and have children, your estate will go to your children in equal shares. If any of your children have predeceased you, the deceased child’s share will pass to their children, if any.
Married without children. The law that governs how property is distributed when you are married without children depend on whether you live in a common-law property state or community property state. If you live in a state that abides by common law, property acquired by one member of the couple, or titled in the name of just one spouse, is solely owned by that person. When a spouse passes away, their separate property is distributed in probate, often resulting in it being split between the surviving spouse, siblings, and parents. Any property owned jointly will continue to be owned by the surviving spouse.
On the other hand, if you live in a community property state, any assets acquired by either spouse during marriage are considered community property and are owned by both spouses equally, regardless of the name on the title. When one spouse passes away, their half of the community property passes to the surviving spouse automatically. Any assets acquired before marriage are owned only by the original owner and considered separate property. This separate property will be distributed according to applicable intestacy laws.
Married with children. If you are married with children, all of whom are children of the surviving spouse, your entire estate will pass to your spouse. If you have children from a previous marriage, your estate may be split between the surviving spouse and the children from your previous marriage.
Bianca Ybarra is a graduate of the University of Houston Law Center and a member of the State Bar of Texas.