How Does Real Estate Pass Through Intestacy?

By Marie Murdock

When someone dies but fails to leave a will, laws of intestate succession for the state where the real estate is located determine who inherits the property. Intestate succession laws are established based on family structure, so whether the decedent leaves a surviving spouse, living parents, children, no children, siblings or no direct descendants at all determines who inherits real estate owned at the time of death.

Surviving Spouse

State laws vary as to whether or not the surviving spouse inherits the entire estate. In most states, if the decedent has no children or surviving parents, then the entire estate will pass to the surviving spouse. If the decedent is survived by children who are also children of the surviving spouse, state laws vary as to whether the spouse gets the entire estate or only those assets that constitute a particular dollar amount or fractional interest with the remainder passing to the children. The spouse may also inherit less if children exist who are not also children of the surviving spouse, as in the case of children born from a previous marriage. Community property laws in a state may also affect a spouse’s share in real property. In a few states, the spouse’s share may be equal to or less than that of surviving children. For example, in Mississippi, if there are children, the spouse only gets a portion equal to that of one of the children. In Arkansas, surviving children inherit property subject to the dower or life rights of the surviving spouse and any homestead interest she may have in the marital residence.

Children

If there is no surviving spouse, generally children of the deceased will inherit the property in equal shares. Adopted children inherit in the same manner as natural-born children and in some states may even inherit from their birth parents when adopted by someone else.

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Parents

If the decedent dies without a surviving spouse or children, his surviving parent or parents will inherit his assets in many states. Even if there is a surviving spouse but no children, parents may inherit a share along with the spouse. If there are surviving children of the deceased, however, most states do not provide for the parents to share in the inheritance.

Siblings

Brothers and sisters of the deceased usually inherit when there is no surviving spouse, no surviving children and no surviving parents. If any of the siblings are deceased, then his lineal descendants inherit the share to which he would’ve been entitled had he survived.

No Heirs

In the rare situation that no heirs or lineal descendants are located, property vests in the state of residence of the deceased by a process known as escheat. Escheat means that if property has no owner, it is acquired by the state. The state has to comply with laws and proper procedure before merely taking property as its own.

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