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What happens if I don’t leave a will? | Smith & Weer

What to Expect in the Absence of a Will

A will can clarify who gets what after a person’s death or it can be the source of strife among family members. In the absence of a living trust, transfer on death deeds, pay on death accounts, and beneficiary designations, dying without a will is legally termed as intestacy. In that scenario, the distribution of the deceased’s property will vary according to each state’s laws and a judge’s ruling. Hard earned property could end up with relatives one did not see eye to eye with, meanwhile, a domestic partner whom one did not marry might be left out of the court’s final chosen ones.

Determining Asset Distribution

When a judge or court considers who should inherit the estate’s assets in the absence of a will, the following factors are taken into account:

  • Presence or absence of children.
  • Presence or absence of a marriage partner.
  • Presence or absence of a domestic spouse.
  • Presence or absence of relatives.

Single Without Children

The party who receives first consideration are the parents of the deceased. In a case where the parents are not alive, the property may be distributed equally among the siblings. If there are no surviving siblings or nieces and nephews, the estate would be likely shared equally among the relatives from the mother’s and father’s sides.

Presence of Children Without a Spouse

The property is equally designated to the children or the grandchildren of a child who has already passed away.

Presence of a Spouse and Children

The assets may be distributed one of two ways:

  • If the children belong to the deceased person and the surviving spouse entirely, the estate is given to the spouse in full.
  • If the children are from a previous spouse, the property will be shared equally among the children and the current spouse.

Presence of a Spouse Without Children

If the late person owned assets jointly with their spouse, the spouse is legally entitled to full ownership. If the property was owned separately, it may be distributed among the parents, the spouse, and the deceased’s siblings.

Presence of a Domestic Partner

The laws governing the distribution of property in this scenario vary by state. In states where common law marriages are recognized, the common law spouse should have just as much legal right to the assets as a married spouse would. In states where common law or domestic partners are not recognized, the assets may be distributed as if the deceased was single.

What happens to underage children?

A will is critical in deciding who will step in as guardian if the deceased does not have a surviving spouse. The judge is expected to consider the deceased’s possible preference and the family’s status. After a careful evaluation, a guardian is appointed as the sole caretaker.

If you have questions or concerns about a loved one’s estate after their passing, or are interested in having a will drawn up, contact a lawyer, like a estate planning lawyer Phoenix AZ trusts, today.

Kamper Estrada, LLPThanks to our friends and contributors from Kamper Estrada, LLP for their insight into estate planning and wills.

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