When a person dies “intestate” or without a will, that person’s estate will usually pass through a probate court for review and a determination made of how and to whom the property should be distributed. Each state in the United States has its own laws governing the distribution of an estate, including situations where the person who died (the “decedent”) had no will.
The Unified Probate Code and Community Property Laws
The 1990 Unified Probate Code (the “Code”) serves as a foundation for the law of several states in determining how to distribute estate property when a person dies intestate. The Code defines various classes of relatives who may receive property including the decedent’s surviving spouse, descendants (children, grandchildren, etc.), parents, descendants and siblings of parents (aunts, uncles, cousins, nieces, nephews), grandparents and descendants of grandparents. If none of the classes of relatives are qualified to take the estate, the estate and its property “escheats” (“passes by default”) to the state. Several other states do not use the Uniform Probate Code and some use community property laws. In community property states, the surviving spouse will usually get at least 50% of the net community property. (Community property states include Arizona, California, Idaho, Louisiana, Nevada, New Mexico, Washington and Wisconsin.)
Intestate Succession Law Terminology
Before analyzing the various situations which occur when someone dies without a will, it is important to become familiar with the following terminology concerning intestate succession:
Net EstateThe amount remaining to be distributed to the heirs after all the debts, liens, taxes, family protections/allowances, administrative expenses and other such costs have been paid.
Per Stirpes – Per Branch – By Right of RepresentationSituations where each family “branch” is entitled to receive an equal share of an estate. By way of example, the decedent died without a surviving spouse, each of her three sons – Aaron, Bruce and Charlie - would receive one third of the net estate. If Charlie died and had two surviving children, Charlie’s children would each receive Charlie’s one third portion of the estate to be divided 50-50 between the two children. Each family “branch” is thus getting a one third portion of the estate. This rule is followed by many states.
Per Capita at Each GenerationSituations where the surviving heirs distribute the property equally at each generational level. Using the same example, suppose the decedent died without a surviving spouse. Only one of his three sons – Bruce – is still alive. Aaron died leaving one child, Bruce is alive and has two children, and Charlie died leaving two children. Distribution works by leaving each “branch” of the family at the top surviving level with an equal portion. Bruce receives a 1/3 share and the children of Aaron and Charlie (the grandchildren) receive equal shares of the remaining 2/3 portion of the estate. Aaron’s only child and Charlie’s two children receive a 2/9 share (2/9 + 2/9 + 2/9 = 6/9 or 2/3) of the estate. This rule is followed by states such as Alaska, Arizona, Colorado, Hawaii, Maine, Michigan, New Jersey, New Mexico, New York, North Carolina, Oklahoma, Utah, and West Virginia.
Intestate Succession Distribution Under the Uniform Probate Code
The following explains how an estate is distributed amongst family members when a person dies intestate, without a will.
Surviving Spouse, With And Without Descendants
Surviving ChildrenThe entire net estate will be distributed to the surviving spouse if the children were all the children of both the decedent and the surviving spouse.
No Surviving Children or ParentsThe surviving spouse will receive the entire net estate if the decedent is not survived by descendants or parents.
Surviving Parents, No Surviving ChildrenThe surviving spouse is entitled to the first $200,000 of the net estate plus 75% of anything exceeding that amount, with the remaining 25% to be distributed to the decedent’s parents.
Surviving spouse with both children of both spouses and children only of the decedent (the surviving spouse is a step-parent)The surviving spouse is entitled to the first $150,000 of the net estate and 50% of the remainder with the other 50% distributed equally to all the children of the decedent only and children of both spouses.
Surviving spouse, surviving children only of the decedent (surviving spouse is a step-parent)The surviving spouse is entitled to the first $100,000 of the net estate and 50% of the remainder with the other 50% distributed equally amongst the children of the decedent.
Surviving Descendants, No Surviving Spouse
If there is no surviving spouse, all the descendants receive an equal portion of the net estate - “per stirpes” or by “right of representation.”
Surviving Parents, No Descendants
If the decedent died single with no surviving spouse or children, the entire net estate passes to surviving parents to be shared equally or entirely if there is only one surviving parent. If both parents are deceased, the net estate is then distributed to the descendants of the parents, being the siblings of the decedent (brothers and sisters). If the decedent died as an only child with no surviving parents or their descendants, then the net estate will pass to the surviving grandparents or the descendants of the grandparents. If neither the grandparents nor their descendants are alive, the net estate escheats to the state.
Intestate Succession Distribution In Community Property States
The following explains how an estate is distributed amongst family members when a person dies intestate, without a will, in the eight states that have community property laws. (Arizona, California, Idaho, Louisiana, Nevada, New Mexico, Washington and Wisconsin)
Surviving Spouse, Surviving DescendantsIf the decedent died leaving a surviving spouse and children, most states will distribute one-third to one-half of the net estate to the surviving spouse with the remainder to be divided equally amongst the children (most states being either per stirpes or per capita by generation.)
Surviving Spouse, No DescendantsIf the decedent died leaving a surviving spouse but no children, most states will distribute one-third to one-half of the net estate to the surviving spouse, the rest being awarded to the decedents parents if they are still alive. If the decedents parents are deceased, the decedent’s siblings (brothers and sisters) will then receive an equal share of that remainder. Half-siblings are considered the same as full blood siblings in the matter of distribution under this method.
Surviving Descendants, No Surviving SpouseWhen a person dies without a surviving spouse, the entire estate will pass to the children of the decedent.
No Surviving Spouse, No Surviving DescendantsIn the case where a person dies without a surviving spouse, children or will, several states would distribute the net estate equally to the decedent’s surviving parents. Other states will divide the property equally between surviving parents and siblings of the decedent. Where there are no surviving parents, the net estate is divided siblings or other relatives if no siblings are alive.