If you die without ever creating a will, your estate is then divided up according to a set of default rules called “the intestate statutes.” Intestate is a just a jargon-y word that literally means you don’t have a will, and these make rigid yet common-sensical assumptions about how you would have handled your estate if you did create will.
Because all inheritances are a matter of a state law, there is no uniform rule for determining how an estate will be distributed. Despite this, there is a six-step general rule that is the intestate law in over 40 states, and I’ll walk you through the six step process that is a worthwhile template for how most states handle the death of an individual without a will.
Step 1. Is there a surviving spouse, child, grandchild, great-grandchild, or any descendant thereafter?
If yes, you may stop the inquiry here. If it is just the spouse that survives, then he or she will get the entire estate. If it is just the kids who survive, then they will share equally. If any child dies before you, you will then need to look up whether your state practices strict per stirpes, per capita with representation, or per capita at the generational level. If there is both a surviving spouse and kids or their descendants, then you look up whether your state follows the Uniform Probate Code. If it does, then the spouse gets everything provided that the spouse’s descendants are the same as the descendants. Other states give the spouse some combination of a fixed amount, a third of the estate, or half the estate and splits the rest among the kids/descendants.
If none of these apply, go to step 2.
Step 2: Do any parents survive?
If yes, then they both receive the full estate. If they divorced, they each get a half interest in the estate. If only one parent survives, then he or she gets the entire estate.
If there are no surviving parents, then you move on to step 3.
Step 3: Are there any siblings or descendants of the siblings?
If the brothers and sisters of the decedent are all alive, then they have an equal share of the estate. If some of the siblings survive, but one or more has died, then you must check with your state statute to see whether the death of a sibling created a legal interest in their descendants or not. There is a slight majority rule that it does, but again, it varies.
If there are no brothers and sisters, or there were brothers and sisters who died first in a state that doesn’t recognize an interest in their descendants, you move on to step four.
Step 4: Can you find any living relatives?
At this point, there are no more general rules and the subsequent intestacy rules vary dramatically by state although there is a tendency to follow the bloodline of the grandparents to see what relation you can find. Some statutes provide have intestacy statutes that even award relative to the 9th degree if you can’t find anyone closer, so at this point you find anyone you can and compare them to your state’s intestacy statute (which is what you ought to be doing anyway)
Step 5: What if you can’t find any descendants or bloodline relations within the 7th to 9th degree (depending on the state)?
Then, the estate goes to the state. There are some interesting court cases where a single widow visits a church every day and makes it the centerpiece of his identity, and then dies without a will and no family relations. The Church tries to receive the estate. No cigar. It goes to the state.
One of the blessings of Google is that your state’s intestacy statute is very easy to look up and figure out.
For instance, I’m in Missouri.
I google “Missouri intestacy statute.”
The first suggestion is for RSMO 474.010 which takes me to the moga.mo.gov online listing of the Missouri Revised Statutes: http://www.moga.mo.gov/mostatutes/stathtml/47400000101.HTML
And there, it spells out what happens. What happens if your husband dies and you had three kids with him and there is a $100,000 intestate estate? Well, it tells you right there in 474.010(1)(b). You get the first $20,000 and then half of the remaining $80,000. So you’d get $20,000+$40,000=$60,000. Of the remaining $40,000, each of the three kids would get $13,333.33 a piece. And that’s it.
These things seem daunting at first to figure out, but you should always remember it just comes down to knowing where to look and having the mastery of the vocabulary. Decedent means the person who died. The intestate estate of the decedent refers to the value of the dead person’s stuff that wasn’t directed to go to someone after his death. You type in “ [your state] intestacy statute” and click on the Google search button that takes you to the specifics of your state and from there it is just a matter of clarifying the subsequent jargon that you encounter.
Notice: This article, which I believe may be of interest to readers, is for general information and entertainment purposes only. It only reflects my best understanding of the topic at hand and should not be relied upon as legal or investment advice.