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Written by AskTheLawyers.com™ on behalf of Charles Triay with Triay Law Office.
Losing a loved one is painful and difficult. In addition to the emotional impact, losing family members or friends often means that their loved ones often have to take care of their affairs after death. This includes dividing any remaining assets in accordance with the deceased family member’s will. While a will can be a helpful way for family members to simplify the affairs of the deceased, sometimes there will be no will for them to use after a death. What happens then?
Many of us are used to seeing wills and their divisions in film and television—if a character passes away without one, the script may pass all of the deceased’s assets to one main character, or devise a way for the assets to be split evenly without the intervention of the law. However, the truth of will-less deaths is more complicated.
When someone dies without having left behind a will, they are generally recorded as having died “intestate.” When this happens, the division of the assets of the deceased will be left up to the intestacy laws of the state they previously resided in. In this way, depending on which state the deceased lived in, there could be certain rules and provisions that other states do not have. However, there are a few general rules when it comes to intestacy laws.
If the deceased is single without children and has no will when they pass away, their estate will generally be left to their parents, as long as they are both still alive. If one parent passes away before the deceased does—or before the division of their child’s assets—the estate is divided between the deceased’s siblings and their living parent. If neither parent is living at the time of asset division, the estate will be divided among the siblings of the deceased. If there is no immediate family, the estate is given to the deceased’s closest living relatives. This could include cousins, nieces, or nephews. If the deceased has any surviving children, the estate will be given to them.
If the deceased is married at the time of death, the whole or majority of their estate will generally be given to their surviving spouse. In domestic partnerships, the estate is divided depending on the state’s domestic partnership laws.
It is important that, if you are concerned about how your estate would be divided in any of these scenarios, that you talk to an attorney with experience in estate planning. If you do not have a will, they can help you prepare one and navigate your state’s asset laws regarding bank accounts, businesses, and other possessions. In this way, you can ensure that your estate will be divided in the way you desire it to be, and that the estate planning of your family and other loved ones can be as smooth and logical as possible.
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