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What Happens When Someone Dies Without a Will?

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Intestate is the term used by the court system to identify a person who has died without a valid will. The scenario is one in which the individual has “died intestate”. The living family members will want to know who will inherit the assets and how the estate will be distributed.

Inestate Succession

Last-Will-and-Testament-Form-with-Gavel

Here’s how the assets are divided when a loved one dies without a will.

In intestate succession, the state law allows for certain classes of family members to inherit the decedent’s estate. Each state has its own set of laws for intestate succession, which offers an organized and systematic way to distribute property.

The class of heirs delineates who will receive what portion of the decedent’s estate. For example, in the case where a decedent leaves behind a spouse and four children, the estate will be divvied up, with half of the estate going to the spouse and the other half distributed to the children. If the decedent had no spouse but children only, the estate goes directly to the children. If the decedent leaves behind no spouse and no children, more distant relatives receive the share.

Five classes of heirs exist when evaluating an intestate case:

  • Parents
  • Surviving spouse of the decedent
  • Descendants, including children and grandchildren
  • Siblings, nieces, nephews and other descendants of the decedent’s parents
  • Aunts and uncles (the descendants of grandparents)

When none of the above survive at the time of the intestate succession, then the estate escheats to the state or county. Such situations where the state receives the entire estate rarely occur, as state laws are designed to ensure that even the most remote relatives receive the inheritance. Unmarried partners, friends and charitable organizations do not receive a decedent’s assets under intestate succession laws.

It is important to note that certain property cannot by law be passed by a will. These assets include the following:

  • Property in a living trust
  • Assets in a 401(k), IRA or retirement plan with a named beneficiary
  • Stocks, real estate or vehicles held in a transfer on death (TOD) account or deed/title
  • Proceeds from life insurance policies
  • Assets held in joint tenancy, including bank accounts and real estate

These types of property may only be passed on with documentation that establishes co-ownership or a beneficiary.

Those Who Will Not Receive Assets

All states have established laws that prevent a relative who behaved badly toward the deceased individual from inheriting any assets. For example, kindred who committed a crime against the person who died, causing the individual’s death, will almost never receive anything from the decedent’s estate. Parents who failed to pay child support, committed crimes against the child or abandoned the child do not profit from the deceased child’s assets.

Children

Children can have varying descriptors in the eyes of the courts. Foster children, for instance, do not typically inherit an estate from foster parents. Stepchildren who are not legally adopted by the deceased usually do not receive a portion of the inheritance. Legally adopted children have the right, according to state laws, to receive the estate just as would biological children.

However, intestate succession laws do not give children adopted by an unrelated family the legal right to inherit the property of the biological parents nor the right for biological parents to inherit from the deceased child. In adoption cases where inheritance is in question, the state laws cut the legal tie between birth parents and their children.

Spouses

State laws give careful consideration about who qualifies as a spouse. Normally, a spouse is one who is legally married to the decedent at the time of death. Questions may arise as to the legal status of marriage, such as in the following scenarios:

  • Pending divorces and legal separation blurry the line between who qualifies as a spouse and who does not in the eyes of the law. If divorce proceedings are begun before an individual dies or if the couple is separated prior to one spouse dying, a judge will consider whether or not the surviving member is deemed a spouse.
  • Differing states may or may not recognize common-law marriages. Some states do allow common-law marriages, in which a couple intends to get married, cohabits and presents themselves as would a married a couple.

Other Relatives

Illinois has certain additional laws that effect intestate succession. “Half” relatives, such as a half-brother or half-sister, are entitled to a deceased parent’s inheritance just as would “whole” relatives. Relatives who are not citizens of the United States are entitled to an inheritance under Illinois intestate succession laws.

Those who abuse, neglect, or exploit an elderly individual will not receive any portion of that person’s estate upon his or her death. Illinois laws also stipulate a survivorship time period of 120 hours. This means that in order to inherit, the individual must outlive the decedent by at least 120 hours. If two siblings are involved in a car accident, for example, and one sibling dies a few hours after the other, the survivorship law does not allow for the inheritance of property.

Estate Planning Attorneys

When you are in doubt about a family member’s transference of property when no will is found, consult the most trusted estate planning lawyers in Oak Lawn IL, Berry K. Tucker & Associates, Ltd. Our lawyers are experienced in helping clients develop wills and trusts. Our estate attorneys not only assist you with creating and modifying a will, but also with contesting wills.

The Berry K. Tucker & Associates Ltd. team of lawyers also specialize in trusts as a part of estate planning. Clients will want to provide for the future of their family with the development of a trust. Examples of trusts on which we focus include charitable trusts, dynasty trusts, life insurance trusts, family trusts, living trusts and special needs trusts, among others.

Plan for your family’s future by consulting the skilled will and trust attorneys at Berry K. Tucker & Associates, Ltd. Our lawyers are available for an immediate consultation at (708) 425-9530.

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