When a death occurs, surviving family often rummage through the deceased’s files in search of a Last Will and Testament. In some cases, they wind up empty-handed. This raises a series of pressing questions: Who handles the estate? Who gets what? Does this mean everything goes to the state? This situation happens more than you might expect: according to most studies, the majority of Americans do not have a Will. Fortunately, the law provides clear answers.

Who Gets What?

The answer depends on the number of surviving family members and their relationship to the deceased. The law of intestate succession, as its called, imposes a sort of “one size fits all” distribution scheme that attempts to mirror what most people would probably do had they drafted a Will. However, this law is inflexible and will not bend in light of evidence that the deceased may have wanted an alternate distribution. The law assumes that if the deceased did not want the intestacy statute to apply, then they would have created a Will.

To get back to answering the question, we first determine who survived the deceased. Did they leave a spouse? Did they leave children and/or grandchildren? Parents? Siblings? Nieces and nephews? Cousins?

The law understandably gives a surviving spouse priority. Everyone else’s rights are subject to the spouse being satisfied first. So what exactly does the spouse take? Again, it depends. In the simplest case, if the deceased and the surviving spouse had children together, and neither of them had children with someone else, then the surviving spouse takes everything.

However, if either the deceased or the surviving spouse also had children with someone else, then the surviving spouse will receive the first $100,000 plus one-half of the balance of the estate. The idea here is to possibly set something aside for the deceased’s other children or family members. If the deceased did not have children, then the surviving spouse takes the first $200,000 plus three-quarters of the balance.

After we satisfy the surviving spouse, or if there is no surviving spouse, then we turn our attention to everyone else. The combinations and permutations here could be endless but the general rule is as follows: the estate flows “down” to one’s descendants (children, grandchildren, and so forth), with the surviving members of each generation nearest the deceased sharing equally. To help explain how this works, we’ll look at an example:

Assume Dan dies with no surviving spouse and survived by his three children, Ann, Ben and Claire. Each child takes 1/3 of Dan’s estate. Simple enough. Now assume Ann and Ben died before Dan. Ann is survived by three children, Ben is survived by one child, and Claire (still living) has two children. Claire, the lone surviving child of Dan, still takes 1/3 of Dan’s estate. Ann and Ben’s shares are combined and divided equally among the surviving members of the next generation nearest the deceased. Thus, Ann’s three children and Ben’s child each receive 1/4 of the 2/3 combined share, which means they each take a 1/6 share. Claire’s children take nothing, as Claire survived and her children are thus not the nearest to the deceased in Claire’s line.

If the deceased did not leave any descendants, then we look “up” the family tree for a new starting point. If the deceased is survived by parents, then the parents take. If the parents predeceased the deceased, then we start moving down the line of the parent’s descendants (the deceased’s siblings, nieces and nephews, and so forth), dividing and recombining shares in the same fashion as above. If there are no parents or descendants of parents, then we go further up to grandparents and back down their descendants until we find takers.

If the apocryphal tales of unexpected inheritances from distant and forgotten relatives are to be believed, they are almost certainly the result of the intestacy statute rather than the intentional benevolence of a Last Will and Testament.

Doesn’t the State Take the Money?

This is a common misconception that causes endless panic among callers to our office. Only if the deceased leaves no “kin” at all, then the estate will “escheat” to the Commonwealth or, if the deceased was a veteran residing at death in a Soldiers’ Home, then to that home. If you are in a position to be concerned that you will lose an inheritance to the state, then the odds are that you come way before the state and have nothing to worry about.

The Non-Probate Estate

As always when discussing Wills or intestacy, it is essential to understand that we are only discussing the probate estate. Assets that pass outside of probate like jointly held property, life insurance policies, retirement accounts, and brokerage accounts, are disposed of according to their own terms, such as to the joint owner(s) and the named beneficiaries. Only if a beneficiary designation lapses or is left blank will a non-probate asset then be paid into the probate estate and, from there, to the takers outlined above.

Do I Need A Lawyer?

A Personal Representative of an intestate estate has the same duties and obligations of a P.R. who administers an estate pursuant to a Last Will and Testament. Among the many traps for the unwary P.R., if they fail to properly identify the heirs and/or calculate their interests, the P.R. could be personally liable to them.

If you have questions about probating the estate of a loved-one who recently died without a Will, please give us a call for a free consultation: 617-737-9100

Or email us: info@fegreuslaw.com