Wills FAQs

Studies indicate that many persons who have accumulated wealth during their lifetime die without a valid will. When this happens, the decedent's property passes by intestate succession to the decedent's heirs at law according to law. In other words, if you don't have a will, the state will make one for you. All fifty states have laws of this sort.

The purpose of intestate succession statutes is to distribute the decedent's wealth in a manner that closely represents how the average person would have designed his or her estate plan had that person had a will. However, this default can differ dramatically from what the person really would have wanted. Even where is it is known what the person intended, no exceptions are made where no valid will exists. Nor are there any exceptions made based on need or special circumstances.

1990 Uniform Probate Code

The 1990 Uniform Probate Code (the Code) serves as the starting point for many states' laws. Nevertheless, the laws of different states vary greatly from each other and from the Code itself. However, the Code represents the best reference for a general discussion.

Under the Code, close relatives take property instead of distant relatives. The classes of relatives whose members receive property under the Code include the decedent's

• Surviving spouse
• Descendents (children, grandchildren, etc.)
• Parents
• Descendents of decedent's parents (siblings, nieces and nephews)
• Grandparents
• Descendents of grandparents (aunts and uncles and cousins)

Adopted descendents are treated the same as biological descendents. If none of the above-named classes of relatives include any persons qualified to take the estate, the property "escheats" (goes by default) to the state.

• Share Of Surviving Spouse

  Under the Code, a surviving spouse is either entitled to the entire estate (after expenses and taxes of the decedent or a substantial part of it.

  • The surviving spouse is entitled to the entire net estate if children who are all children of the decedent and the surviving spouse also survive the decedent.
  • The surviving spouse is also entitled to the entire net estate if descendents and parents do not survive the decedent.
  • If parents survive but no descendents survive, a surviving spouse takes the first $200,000 of the net estate plus ¾ of anything exceeding that amount.
  • If the decedent is survived by descendents who are also the descendents of the surviving spouse, and by descendents who are not descendents of the surviving spouse, the surviving spouse takes the first $150,00 of the net estate plus ½ of anything exceeding that amount.
  • If the decedent is not survived by any descendents who are also descendent of the surviving spouse but is survived by descendents who are not descendents of the surviving spouse, the surviving spouse takes the first $100,000 of the net estate plus ½ of anything exceeding that amount.

• Share of Descendents

  Under the Code, if no spouse survives but descendents of the decedent survive, the descendents take the entire net estate by "representation."

• Share of Parents

  Under the Code, if a decedent is not survived by a spouse or descendents, the entire net estate passes to the decedent's parents equally or, if only one survives, to the survivor.

• Share of Other Relatives

  Under the Code, if a spouse, descendents, or parents do not survive a decedent, the entire net estate passes to the decedent's parent's descendents (siblings of the decedent). If there are no siblings or descendents of siblings, the net estate goes to the decedent's grandparents or their descendents.

• Net Estate

  The "Net Estate" is the amount left for distribution to heirs after all debts, family protections, taxes, and administrative expenses have been paid. "Family protections" include homestead allowances, family allowances, and exempt property allowances. Under the Code the surviving spouse or minor child(ren) is entitled to a $15,000 homestead allowance, a family allowance in a reasonable amount to support the family during the administration of the estate, and a $10,000 exempt-property allowance (ordinarily charged against household furniture, automobiles, furnishings, appliances, and personal effects).

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