Many Americans who do not have a will wonder: What happens if I die without a will?
If you die without a will, you are said to have died intestate.
What happens if you die intestate?
The law of the state where you reside at the time of your death determines how your estate will be distributed. So, if you die intestate, and you are a resident of Oklahoma at the time of your death, your assets will be distributed according to the Oklahoma Intestate Succession Law. This law says that intestate estates must be distributed as follows:
If you are married at the time of your death, your spouse gets the following:
· If you have no surviving children, descendants, parents, brothers, or sisters, your spouse gets your whole estate.
· If you have no surviving children or descendants, but you have a surviving parent, brother, or sister, your spouse gets all of the property acquired by the joint industry of the spouses during coverture, and 1/3 of the remaining property. “Property acquired by the joint industry of the spouses during coverture” is a somewhat difficult concept to understand. It refers to the property that the spouses acquired during marriage through their joint efforts. Even if one spouse does not work, the property the other spouse acquired is considered to be acquired through joint industry. This is due to the fact that the non-working spouse is considered to have contributed to the acquisition of property. An oversimplified answer to the question of what constitutes property acquired by the joint industry of the spouse during coverture is:
o If property was not acquired during the marriage, it was not acquired by the joint industry of the spouses during coverture.
o If property was acquired during marriage, it was acquired by the joint industry of the spouses during coverture, unless one spouse acquired the property by gift or inheritance.
o Even if property was not acquired by joint industry of the spouses during coverture, the separately-acquired property may become joint property if the spouses commingle the separately-acquired property with jointly acquired property.
To read court cases on how to tell whether property was jointly acquired during coverture, click here, here, here, and here.
· If you have surviving children or descendants, and all of your surviving children or descendants are also descendants of your spouse, your spouse gets an undivided one-half interest in all of your estate.
· If you have surviving children or descendants, and any of your surviving descendants are not your spouse’s descendants, your spouse gets:
o ½ of the property acquired by the joint industry of the spouses during coverture, and
o Count the total number of all of your children. If you have deceased children, and these children have descendants who survived them, include these deceased children in the total number of your children.
After you’ve counted the total number of your children, add one. Divide the remaining estate by that number. That is your spouse’s share of the remaining estate.
For example, say that you have four children. 4 + 1 = 5. Your spouse would get 1/5 of your remaining estate.
After your estate has been distributed to your spouse, the rest of your estate will be distributed as follows: (If you are not married at the time of your death, your entire estate will be distributed this way)
· In equal shares, to your surviving children. If you have deceased children, the children of your deceased children inherit “by right of representation.”
“Right of representation,” is a somewhat difficult concept to understand. It means that, you count the number of living descendants at the nearest generation to the decedent. Then, you divide the decedent’s estate into equal shares, and each living descendant gets one share. If a descendant in that generation is deceased, each child of that descendant gets an equal share of that descendant’s share.
For example, suppose Decedent had three living children:
Each child would get 1/3 of Decedent’s share.
Now, suppose that Decedent has three deceased children, and each child had children of his own:
Each grandchild would get 1/6 of Decedent’s share.
But, suppose that Decedent has three children. The first two children are deceased, and the other child is living:
Child 3 would get 1/3 of Decedent’s estate.
Child 1 would get 1/3 of Decedent’s estate. But, since Child 1 is deceased, his share would be divided equally among his three children. Thus, grandchildren 1, 2, and 3, would each get 1/9 of decedent’s estate.
Child 2 would get 1/3 of Decedent’s estate. But, since Child 2 is deceased, his share would be divided equally among his two children. Grandchildren 4 and 5 would each get 1/6 of Decedent’s estate.
· If you have no surviving descendants, your estate will be distributed in equal shares to your surviving parents.
· If you have no surviving descendants or surviving parents, the descendants of your parents inherit “by right of representation.” (see above on “right of representation.”)
· If you have no surviving descendants, no surviving parents, and no surviving descendants of parents, then, half of your estate goes to your paternal grandparents, and half of your estate goes to your maternal grandparents. If your paternal grandparents are deceased, the descendants of your paternal grandparents inherit your paternal grandparents’ share “by right of representation.” If your maternal grandparents are deceased, the descendants of your maternal grandparents inherit your maternal grandparents’ share “by right of representation.” (see above on “right of representation.”)
· If you have no surviving descendants of grandparents, the estate passes to your next of kin.
· If you have no other relatives, your estate goes to the state for the support of the public schools.
Click here to read the Oklahoma Intestate Succession Law.
This is one reason that it’s an advantage to have a will. If you have a will, then you, and not the government, will decide how to distribute your estate when you die.
What happens to your minor children if you die without a will?
If you die without a will, and you still have minor children, someone else may petition the court to be appointed as your children’s guardian. The state has created an “order of preference” for who should be appointed guardian of a child. This order of preference is as follows:
1. A grandparent;
2. A person who was indicated by the wishes of a deceased parent;
3. A relative of either parent;
4. The person in whose home the child has been living in a wholesome and stable environment including but not limited to a foster parent; or
5. Any other person deemed by the court to be suitable and able to provide adequate and proper care and guidance for the child.
Click here to read the state law on the order of preference.
But, if you write a will, you can designate a person that you choose to be your children’s guardian. (Even though the state law places a grandparent ahead of “a person who was indicated by the wishes of a deceased parent” in the order of preference, you may state in your will that you want someone other than the child’s grandparent to be your children’s guardian, and a court will likely honor your wishes.)
Have a question about your estate plan? Contact a lawyer.
I’ve attempted to describe the intestate succession law as simply as I can. But, it’s difficult to understand, and you still may have questions about it. You may have a relative who has passed away without a will, and you want to know how their estate is to be distributed. Also, you may want to know how your estate will pass if you die without a will. If you have any questions, or if you would like a will so your family won’t have to deal with intestate laws, contact us today. The Bible says, “A good man leaves an inheritance to his children's children” (Proverbs 13:22).
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