This article has been reviewed by a practicing attorney in 2020
This content is not intended to be a substitute for professional legal advice. Always seek the advice of an attorney or another qualified legal professional with any questions you may have regarding your situation.
Death can be an uncomfortable topic. It is one many people dislike thinking or talking about. Perhaps, in part for this reason, people often die without having any type of estate plan in place. Dying without a document directing how your estate will be divided upon your death, for example a will, a trust, or a death deed, is called dying “intestate.” Importantly, when you die intestate, a court decides how to divide your estate, not you.
As a general matter, when you die intestate, a lawsuit is filed on your estate’s behalf, and your estate is distributed in court via probate. “Probate” is the legal process for settling an estate, whether a person dies intestate or with a will. As the person who died, you are named the “decedent” in the lawsuit.
Where is the Lawsuit Filed and What State Law Applies?
The first issue concerning litigating a decedent’s estate is determining in which state the lawsuit is filed. The decedent’s estate will generally be distributed in accordance with the laws of that state. This is important to understand because intestacy laws differ from state to state. Typically, the probate suit will be filed in the state in which the decedent was domiciled upon his or her death. A “domicile” is a person’s permanent legal home. It is the location in which a person intended to dwell permanently, as indicated by his or her actions.
It is important to note that laws of other states may also apply to the decedent’s estate if he or she owned real property in a state other than his or her domicile. Real property” refers to any fixture above the land, most commonly, a house, and anything below the land, such as minerals. A decedent’s real property is generally distributed in accordance with the laws of the state in which the real property is located.
Once the probate estate has been filed/opened, the court will appoint an “administrator” to oversee the estate, and this person will also be named in the lawsuit. It is common for courts to appoint close family members as the administrator. The administrator is charged with collecting the decedent’s assets, paying creditors, and distributing any remaining assets to heirs. The administrator acts in this capacity under supervision from the probate court and in accordance with local law. Once the administrator has made an accounting of the decedent’s assets, and has paid the decedent’s creditors, the administrator distributes any remaining assets to the decedent’s heirs.
Who qualifies as a decedent’s heir depends on state law, which can vary dramatically. The idea behind intestacy laws is that a person’s estate is distributed in the manner in which he or she would have likely distributed their estate via a will. If the court is unable to locate an heir for a decedent, or if the decedent has no heirs, the property “escheats” to the state, meaning the property reverts to the state.
As a general matter, a surviving spouse is usually the first to inherit under intestate succession. However, the amount, and the way the surviving spouse’s portion is divided, depends on if the decedent has at least one child and state law. After the surviving spouse takes his or her portion of the estate, generally, any children of the decedent (and their descendants) follow in line. For simplicity, the examples in this article assume a decedent died without a surviving spouse and with descendants (children, grandchildren, etc.). But note that, even when a person dies unmarried and without descendants, his or her estate still passes to family, generally in the following order: parents, siblings, nieces or nephews, grandparents, aunts or uncles, and so on. Also note that state law varies concerning half-siblings and non-marital children.
As discussed, above, state intestacy laws vary. Please note that this area of the law is quite complicated. If you have questions about the intestacy laws in your state, it is vital that you contact a local estate planning attorney to help you better understand how your estate would be distributed upon your death.
States generally distribute a decedent’s intestate estate in one of the following ways: (1) classic per stirpes distribution, (2) modern per stirpes distribution, and (3) per capita at each generation distribution. We discuss each below.
Classic Per Stirpes Distribution
Per stirpes means “by branch,” and under this distribution, the decedent’s estate is divided via each “branch” of the family. Classic per stirpes distribution always distributes the decedent’s estate beginning with the level of the decedent’s children, regardless of whether any children are still living. The decedent’s children’s heirs inherit via their respective “branches.”
Take the following family as an example:
- Charlie had three children, Bill, Chuck, and Nancy (Charlie’s wife predeceased him)
- Bill has one child, Mary
- Chuck has three children, Sam, Eva, and Caroline
- Nancy has two children, Laura and Meg
Ex .1: If Charlie is survived by Chuck, Nancy, and Bill, each of his children receive a 1/3 share of his estate.
Ex. 2: However, if Chuck and Bill predecease Charlie, Nancy is entitled to a 1/3 share of Charlie’s estate. Chuck’s “branch” in the family tree passes his 1/3 share equally to his three children. So, Sam, Eva, and Caroline each receive a 1/9 share in Charlie’s estate. Bill’s “branch” in the family tree passes his 1/3 share to Mary alone. Charlie’s other grandchildren, Laura and Meg are not entitled to any portion of Charlie’s estate because their Mother inherited.
Ex. 3: Taking this example one step further, if Bill, Chuck, and Nancy all predeceased Charlie, Mary would inherit Bill’s 1/3 share, Sam, Eva, and Caroline would equally split Chuck’s 1/3 share, giving them each a 1/9 share, and Laura and Meg would split Nancy’s 1/3 share, giving them each a 1/6 share. Despite being on the same generational level, the grandchildren inherit unequal amounts of Charlie’s estate.
Modern Per Stirpes Distribution
Modern per stirpes (also called per capita with representation) attempts to rectify the inequity discussed in example # 3 above. Under this modern approach, the first division of the decedent’s estate occurs at the generation closest to the decedent with surviving heirs. However, each subsequent heir to the first generation with surviving heirs continues to inherit from his or her respective “branch” of the family.
Using modern per stirpes, under the third example above, if all of Charlie’s children predecease him, Charlie’s grandchildren would equally split his estate, resulting in each grandchild receiving 1/6 of his estate. While Laura and Meg would have inherited that same share under a classic per stirpes approach, Sam, Eva, and Caroline would have received less, and Mary would have received more.
By further example, if Sam had two children, Jimmy and Bobby, and Sam also predeceased Charlie, Jimmy and Bobby would split Sam’s 1/6 share of Charlie’s estate, resulting in each child receiving 1/12 of Charlie’s estate. Mary, Eva, Caroline, Laura, and Meg, would each inherit their 1/6 share of Charlie’s estate.
Per Capita by Generation
Per capita by generation also ensures that heirs at the same generational level receive the same share. Under this distribution method, the decedent’s estate is divided into equal shares at the generation closest to the decedent where there is at least one surviving heir, and each surviving heir receives an equal share. The remainder shares (leftover from non-surviving heirs at this generational level) are equally divided among the next generation of descendants.
Taking example # 2 from classic per stirpes, if Chuck and Bill predecease Charlie, Nancy, as the surviving heir closest to Charlie, receives 1/3 of Charlie’s estate. The remaining 2/3 of Charlie’s estate is distributed equally among Chuck and Bill’s four children. So, Sam, Eva, Caroline, and Mary each receive 1/6 of Charlie’s estate. Because Laura and Meg’s mother took under this scenario, they receive nothing. Note that Sam, Eva, and Mary’s shares are different from what they would have received under the classic per stirpes distribution: Sam, Eva, and Caroline receive more, while Mary receives less.
Consulting an Attorney
As you can surmise from the discussion above, intestate succession laws vary and are quite complicated. If you have questions concerning what would happen to your estate if you died intestate, it is important that you seek the advice of an estate planning attorney in your area. Further, if after reading this article you determine you want to prepare a will, we encourage you to contact an estate planning attorney in your area to help you develop the best comprehensive plan for your specific estate.