Thursday, February 08, 2007

intestate succession


What happens if you die without a will? What happens to your stuff? The laws of intestate succession (which vary from state to state, though following roughly the same patterns) will determine how your stuff should be divvied up.

Generally, it goes like this:

1.) Surviving Spouse: that's *spouse* not "domestic partner" or girlfriend or life companion or whatever. Unless you're living in Massachusetts (and I'm still not sure how they're working it all out, so don't quote me) and you're queer, you are *NOT* inheriting anything under intestate succession. Don't even think about it. You and your partner need WILLS, people. WILLS.

If, however, you're lucky enough to be in a relationship recognized by your government, pat yourself on the back and consider this: your surviving spouse will get some of your stuff. How much depends on whether or not you have kids who survive you, whether or not some or all of those kids are also your spouse's kids, and what state you live in.

In most states, the surviving spouse will take one-third to one-half of the estate if you also have surviving kids. Under the Uniform Probate Code (sort of a how-to suggestion manual, the provisions of which states may or may not adopt), if all your surviving kids are also your spouse's kids, then your spouse inherits *all* your estate, on the theory that as a co-parent, she'll consider the best interest of the kids when disposing of the property herself.

2.) Descendants: aka, the kids who outlive you, and their kids if they have any. Anything that your spouse didn't get (or all of it, if there isn't a spouse) goes to your kids. If any of your kids are dead, their share can go to their kids. It gets complicated when you start figuring up how to divide among the kids and the kids of the dead kids, there are several different methods of dispersing shares of your estate to these succeeding generations, and I'm gonna skip it b/c it's boring.

3.) Look down-Look up: This is what Bernie Vail (the old goat who taught my Wills n Trusts class in school) called the approach you take to intestate succession. The "look down" part is covered by looking for the spouse and kids of the decedent. If there are no kids and no spouse (like if I died tomorrow), then you'd look *up* to the generation preceding the decedent, ie: parents. If there are no surviving parents, you look down again, this time at the descendants of the parents, ie: the brothers and sisters of the decedent and any of their descendants. None of those? Look up again to the *grandparents* of the decedent: half of the estate will go to the maternal side, half to the paternal side. Grandparents dead? Look for any of their descendants, as far as you have to go. Half will go to the nearest kin on the mom's side, half to the nearest kin on the dad's side.

If you still can't find anybody after all that, finally, the estate "escheats" to the state. It seems like a lot of people believe the state is ready to swoop down and take your stuff at the drop of a hat, but it's not really true. They try pretty hard to find *somebody* who is related to you to give your estate too. Some states have enacted "laughing heir" statutes which cut off inheritances to relatives who are so remote they get only gain and no loss from your death. But otherwise, your estate could pass to someone *really* remote if you don't have anyone close by.

And now you know. Because I know you were wondering.


Blogger reasonably prudent poet said...

p.s. just reading over this, i remember how completely ridiculous all those words start sounding: look for the descendants who haven't predeceased the decedent and if you can't find any the estate escheats to the state. that's a mouthful.

11:34 PM  
Anonymous Joolie said...

These posts are really interesting. I like law a lot better with an RPP filter.

12:28 AM  
Blogger reasonably prudent poet said...

thanks joolie! i try.

10:16 AM  

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