Probate Court: Dying Without a Will

By Beverly Bird

The estate of someone who has died must generally pass through the probate process whether or not he left a will. This is because probate transfers the titles of assets from a deceased person to a living one. The only exception is if the deceased had no assets that require the transfer of title. Otherwise, when you die without a will, the laws of the state where you lived, called intestacy laws, determine who to transfer your property to, and no two states follow an identical code.

The estate of someone who has died must generally pass through the probate process whether or not he left a will. This is because probate transfers the titles of assets from a deceased person to a living one. The only exception is if the deceased had no assets that require the transfer of title. Otherwise, when you die without a will, the laws of the state where you lived, called intestacy laws, determine who to transfer your property to, and no two states follow an identical code.

State-determined Heirs

Each state bases intestacy laws on what it presumes you would have done if you had made a will, which is usually provide for your most immediate family members. In general, if you have a spouse but no children, your spouse will get everything. If you have children but no spouse, your children will usually divide your entire estate between them. If you leave no spouse and no children behind, your parents are generally next in line, followed by your siblings and their children, then your grandparents and their descendants. In most states, if you have no such relatives, your estate passes to the state.

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Non-probate Assets

Some assets are safe from the probate process whether or not you have a will. These include any asset with a named beneficiary, such as life insurance policies or retirement accounts. Also, if you own real estate without another individual and the deed is held with joint rights of survivorship, your half of the property will pass directly to that person when you die.

Exceptions to Having a Will

Your state’s intestacy laws may sometimes get involved even if you leave a will. For instance, if you or your lawyer make some mistake in the preparation of your will and your state declares it invalid, your property would be disposed of according to intestacy laws. Also, if you try to disinherit a child by simply not mentioning her in your will, your state laws might override this and consider that you simply forgot to mention her, especially if she was born after you wrote the will. It is safest to disinherit someone by specifically stating in your will that this is your intent. However, most states will not allow you to disinherit a spouse.

Other Complications

Another major complication to dying without a will is that real estate must be probated in the state where it exists, not in the state where you died. Therefore, intestacy laws in separate states might become involved if you owned real estate somewhere other than the state in which you lived.

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In Texas What Will Happen to My House if I Die Without a Will?

References

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Texas Inheritance Laws Without a Will

A will is an important part of ensuring that your property is distributed according to your wishes after your death. If you die without a will in Texas, your property will be divided based on a set of probate rules that prioritize heirs based on their legal relationship to you. If you leave a surviving spouse, the amount she will be entitled to will depend on how the property is classified, and whether you left any children.

California Probate Law & Next in Line Inheritance

If you die intestate in California – without leaving a will – probate law meets community property law. The state steps in to distribute your property according to a prescribed line of inheritance that depends on whether you're married and what type of property you hold. You can avoid this problem to some extent by leaving a will, but California's community property laws restrict your bequests somewhat.

Dying Without a Will in the State of Utah

Wills provide you with the greatest control over distribution of your property after death. Under Utah law, if no valid will is present, your estate will pass according to a set of inflexible rules, placing priority on those closely related to you. If no surviving relatives can be located, your property becomes the property of the state.

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