Dying Without a Will 

If a person does not have a will or has not adequately planned for the distribution of his or her estate at death, survivors can face a complicated, time-consuming, and costly process. Often survivors wind up having to pay more taxes on their inheritance than they would have paid had there been a will or other estate planning tool. To provide for surviving friends and relatives, or to support favorite causes or charities, a person can plan for the distribution of his or her estate after death. With planning, an estate can be distributed as fairly as possible with as little tax burden as legally allowed.

When a decedent leaves no will or fails to dispose of all property through a will, the decedent is said to have died Intestate. When a person dies intestate, the probate court steps in to divide the decedent's estate, according to a formula known as the state inheritance laws. Under the state inheritance laws, the probate court uses formulas set by the legislature to divide a deceased person's possessions among any surviving relatives. A probate court applying the state inheritance laws first deducts from the estate the funeral expenses and any unpaid medical bills up to five thousand dollars, allowances made to the surviving spouse and children, estate administration expenses, taxes, and other debts owed.

After all the claims against the estate are paid, and if the decedent has a surviving spouse and no children, the surviving spouse is entitled to all of the personal estate (all possessions other than land) and one-half of the real estate of the decedent. The other half of the real property goes to the decedent's parents or siblings and their descendants. If there are no surviving parents, siblings, or their descendants, then the surviving spouse receives the entire estate.

In addition, the community property of the deceased spouse passes to the surviving spouse if there are no other descendants or if all of the surviving children and descendants of the deceased spouse are also children or descendants of the surviving spouse. Otherwise, one-half of the community property goes to the surviving spouse and one- half goes to the children or descendants of the deceased spouse.

If there are children and no surviving spouse, the entire estate is divided among the children and their descendants.

If all of the children are living, they share in the estate equally. If one or more of the children are deceased, their descendants split a share equal to the share their parent would have received if alive.

If there is both a surviving spouse and children, or their descendants, the surviving spouse receives one-third of the personal estate and the balance of the personal estate goes to the children of the deceased and their descendants. The surviving spouse also receives an estate for life in one-third of the land of the deceased, with remainder to the children and their descendants.

If the decedent leaves neither a spouse nor children, the estate goes to the decedent's father and mother equally. If only one parent survives, then one-half goes to the surviving parent and the other half goes to the brothers and sisters of the deceased and to their descendants. If there are no siblings or their descendants, then the entire estate goes to the surviving parent. If neither parent survives, then the entire estate goes to the brothers and sisters and their descendants. If there are no siblings or their descendants, then the estate goes to the grandparents and their decedents. The line of inheritance continues in an attempt to locate the decedent's nearest kin. Anyone entitled to inherit a portion of an intestate decedent's estate is known as an Heir.

The Law distinguishes between kinds of whole or half-blood. If an estate passes to descendants of both whole and half blood, each of those of half blood inherit only half as much as each of those of whole blood. If all of the descendants are of half blood, they inherit whole portions.

One problem with relying on a probate court applying state inheritance laws to distribute one's estate is that it may not distribute the estate in the manner the decedent would have wanted. State inheritance laws only recognize relatives. The inheritance laws never permit the probate court to support a decedent's close friend, lover, or favorite charities. If the decedent leaves no kin, the estate goes to the state. Clearly, for most people writing a will or creating a trust is advisable.

I encourage you to use this information to form question to present to a lawyer that specializing in Estate Planning. This information should be accepted with caution and verified by an attorney because of variation between states.

Anthony Reed 1000 ASU Dr.# 479 Alcorn State, Ms 39096-7500 areed@lorman.alcorn.edu

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