What You Need to Know About Intestate Succession
We’ve talked so much about why having a will is important, now it’s time to discuss what happens when you die without one. Intestate succession; simply put, is when you die without a will and the state; more specifically the probate court, manages your estate. The probate court decides, according to state law, how your estate is divided; who counts as your heir, and when they receive the inheritance.
Why Is It Important to Understand Intestate Succession?
For most people, intestate succession is not ideal. It’s usually a case of failure to plan and can result in people that you were intending to leave part of your estate to getting nothing at all.
You may still not have decided whether or not you want to create a will, but regardless of your decision, it’s important to know the facts. Read on to learn some of the ins & outs of intestate succession and what it could mean for your estate, and would-be heirs, if you don’t create a will.
Who Counts As Your Heir?
While every state’s laws are different, most of the time the list of heirs is pretty straight forward and includes your direct blood relatives, and your spouse or registered domestic partner. Now is the point you may be wondering exactly what we mean by with the term “direct blood relatives” and the simplest way to explain this is by imaging a family tree.
Anywhere there is a direct ascending or descending line from you to another relative, that’s a direct blood relationship, also known as lineal consanguinity. If you’re not great at visualizing, those people would most likely be your parents and children, as well as your grandparents or grandchildren, or even great grandparents & great grandchildren. Those preceding you are part of the ascending line, and those who came after you are of the descending line. Most states also recognize siblings, including half-siblings and sometimes even those who are adopted out of the family.
Taking it one step further, you may have heard the term “next of kin” at some point. Next of kin does refer to blood relatives, but more specifically, it’s your living blood relatives and is defined by the closeness or degree of blood relationship; for example, you’re more closely related to your mother than you are to your grandmother.
Who Might Intestate Succession Leave Out?
As modern families change their structure and definition it’s important to remember that the laws have not caught up in every state. Many people would like to leave assets to someone who the state may not recognize as an heir, which means if you die intestate, that person most likely will not receive your asset.
Why is this so important? Because you might be surprised who you’re leaving out.
Unmarried spouses: Unfortunately, unmarried spouses will not be recognized by the state unless you happen to live in one of the states that recognizes common-law marriage and if your relationship fits the requirements.
Same-sex couples: Even if they’re legally married, same-sex couples could miss out if they live in a state that doesn’t recognize their marriage. If you’re part of a same sex couple and you’re not living in the state you were married in, make sure you find out your current state’s stance on recognizing your marriage, or create a legal will and take the guesswork out of it.
Stepchildren: Unless they’ve been formally adopted, stepchildren are not usually recognized as legal heirs of an unrelated spouse. If they are legally adopted, that relationship is honored by the state, as adopted children usually inherit just as blood children do.
Foster children: If you’re someone who’s raising foster children and you want to leave part of your estate to them or to pay for their care, you’ll need to create a will. It may benefit you even more to also create a trust so you can define the specifics of their care.
Children adopted by someone else: Adoption legally severs the ties between birthparents and their children. If you give up your child for adoption, even if it’s to someone in your family, they will not inherit from you unless you designate them as a beneficiary.
Friends and Organizations: Intestate succession does not recognize a close relationship between unrelated people or people and organizations. If you have a favorite charity or close friend you want to leave something to, you’re going to need to designate it in a will or trust.
Perhaps at this point you’ve decided you do need a will. Or maybe, you just need to update one you already have, either way, if you’re thinking of letting the state do all the work, make sure you look up the laws of intestate succession for where you live. Also remember, not only does the state decide where your assets go, but they also charge you to do so.
If you need in-depth estate planning advice, or if you’d like help setting up a will or trust, don’t delay. Contact a local estate attorney today.