Updated: Jun 30
Often times a client will tell me, I need to prepare a simple will so that the State does not take
my property. I know how this sounds, but trust me, somewhere someone started this crazy myth that without a will the State immediately comes in and takes your property. I can assure you that does not happen. What does happen is that the State Intestacy Rules determine who gets what.
For all real estate (not including your primary home, which is homestead protected) this is the order of distribution for someone who passes away (the decedent) without a will:
First: A surviving spouse of the decedent receives the entire estate if the decedent has no surviving lineal descendants (children, grandchildren, great-grandchildren, etc).
Second: A surviving spouse of the decedent will also receive the entire estate if the decedent had descendants that are also descendants of the surviving spouse and neither the decedent nor the surviving spouse had any other children.
Third: If the decedent is survived by both a spouse and lineal descendants and any of the lineal descendants is not also a descendant of the spouse, then the spouse is entitled to one half of the estate, and the descendants share the balance, per stirpes.
Fourth: If there are lineal descendants but no surviving spouse, then the estate is shared by the lineal descendants.
Fifth: If there is no surviving spouse and no lineal descendent, then the estate passes to lineal ascendants (parents, grandparents, great-grandparents, etc.) and collateral relatives (siblings, aunts, uncles, etc.). This means that if the decedent’s parents are alive, then they are entitled to the estate. If the parents are not alive, then the estate passes to the decedent’s brothers and sisters and their descendants, per stirpes.
Lastly, If none of the above heirs survive, then the estate passes to the heirs of the decedent’s grandparents, per stirpes, with one-half of the estate going to the decedent’s maternal relatives and one-half going to the decedent’s paternal relatives. If there are no relatives on one side, then the entire estate passes to the other side.