When it comes to estate planning, the most common questions one usually has involve issues like how to write a will, and how to ensure that property is likely to end up in the hands of the intended beneficiaries.
But what happens when a person dies without a will (known as dying "intestate" and the scheme by which property is distributed is known as "intestacy")? How is their property distributed? Such situations are quite common, and there are many ways in which it can happen.
Unfortunately, some people die untimely deaths, before they even considered writing a will.
Some people feel that they don't need a will because they don't have a substantial estate.
A person might write a will, only to have a court declare it invalid after they die, which is the legal equivalent of dying without a will.
In any case, when a person dies without a will, the law has to find a way to distribute that person's property to the people to whom he or she would most likely leave it, if he or she wrote a will.
There is a strong preference to keep property in the family of the decedent (the deceased person whose property is being distributed), leaving it to the closest living relatives.
The exact order of priorities differs from state to state, but the goals of intestacy law (keeping property in the family) are the same, so the schemes are usually quite similar.
The first choice is to give the property to the surviving spouse.
If there is a surviving spouse, and the marriage has produced children (who are still dependent), the presumption is that the spouse will use whatever he or she inherits to support the children.
If there are living children, but no surviving spouse, the property is divided equally among the children.
If there is not a living spouse or child, the next preference is for property to pass up or down the direct line of descent.
So, if there are no surviving children or grandchildren, it will go to the decedent's parents.
If there is no surviving spouse, and no living parents or children/grandchildren, the property will go to the decedent's siblings.
If there are no living siblings, it will go to the decedent's grandparents.
If they are not alive, the law begins to look outside the direct line of descent.
At this point, property will pass to the decedent's aunts, uncles, first cousins, nieces, and nephews; the precise order is likely to vary more from state to state.
If none of these people are alive, the law will start looking at the family of the spouse who died before the decedent (if there was one), and property will be distributed to the decedent's stepchildren or in-laws.
Finally, there is a catch-all provision which gives the property to the decedent's next of kin, or closest living relative, if none of the above people can be found.
If there is absolutely nobody of any relation to the decedent currently living, the property will pass to the state.
When deciding whether or not to write a will, it is important to keep intestacy in mind.
When writing a will, you have almost unfettered control over where your property goes after you die.
However, if you choose not to write a will, you have no control over this matter.
If you are OK with your property going to your closest living relatives, and do not have a strong preference as to what is done with it after your death, declining to write a will may be an option.
However, it is very important to consult with an estate planning attorney to get a more detailed assessment of your options, and their possible consequences.