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What Happens to Probate Property if You Die Without a Will?

 Below are general examples of property distribution schemes that show how state laws direct the distribution of a person’s probate estate when that person dies without a will. These state statutes vary significantly, however; be forewarned that they contain important details not covered here.

MARRIED WITH CHILDREN Many people wrongly believe that a surviving spouse will inherit all property owned by the deceased spouse, especially if they have young children. That is generally not the case. In this situation, the law of most states awards one-third to one-half of the decedent’s property to the surviving spouse and the remainder to the children, regardless of their age.

The court appoints a guardian of the children’s property until they reach legal adulthood. Even when the surviving parent continues to have custody of the kids themselves, this property guardian is not always the parent. This arrangement may leave the surviving parent without adequate resources of her own, forcing her to repeatedly justify childrearing expenses to the court in order to get money for them. If an adult child of the decedent has also died, that child’s children—that is, the decedent’s grandchildren—would inherit their parent’s share to split. 

MARRIED WITH NO CHILDREN OR GRANDCHILDREN In some states, the surviving spouse will inherit the entire estate in this situation—or everything up to a certain value (for example, the first $200,000). In many other states, however, the surviving spouse receives only a specified interest in any real estate owned by the decedent (such as “one-half,” or “one-third”). In addition to that value, the surviving spouse usually gets only one-half of the remaining estate. The balance generally goes to the decedent’s parent(s), if they are still alive. If both parents are dead, many states split the remainder among the decedent’s brothers and sisters.

SINGLE PERSON WITH CHILDREN When a single person with children dies without a will, all state laws provide that the entire estate go to the children, in equal shares. If an adult child of the decedent has also died, that child’s children (the decedent’s grandchildren) split their parent’s share.

SINGLE PERSON WITH NO CHILDREN OR GRANDCHILDREN In this situation, most state laws favor the decedent’s parent(s) in the distribution of his property. If both parents are deceased, many states divide the property among the brothers and sisters. In some states, the decedent’s brothers and sisters are ahead of the parents in the distribution order.

From “AARP Crash Course in Estate Planning: The Essential Guide to Wills, Trusts and Your Personal Legacy,” by Michael T. Palermo, JD, CFP, 2005, pp.  22-23.