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Intestacy: what happens without a will (and sometimes with)

Every state has laws that govern what happens to someone's property after they die without a will, which is called intestacy.
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    December 10, 2013 /24-7PressRelease/ -- Intestacy: what happens without a will (and sometimes with)

Article provided by Berman & Asbel, LLP
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Every state has laws that govern what happens to someone's property after they die without a will, which is called intestacy. These laws generally provide for various scenarios and state what happens in each set of circumstances. It is important to understand these laws, because they can affect a person's estate even where a will is present. Sometimes wills may reference the laws of intestacy, or a will may be found partially void, in which case some part of the intestacy laws may apply.

Intestacy laws in Pennsylvania

The Pennsylvania Code follows a set process. The first question is whether the decedent (the person whose estate is being distributed) has a surviving spouse. If so, the next question is whether there is any surviving "issue" (children). If there are children who are biologically related to the decedent and surviving spouse or there are parents but no children, the spouse gets the first $30,000 plus one-half of what is left. If the children are step-children, the surviving spouse gets one-half of the estate. If the decedent has neither parents nor children, the spouse gets the entire estate.

The rest of the estate (or the whole estate if there is no surviving spouse) goes to the decedent's children first. If there are no children, the estate goes to the parents. The law then lists relatives with increasing distance as next in line. Finally, if none of these individuals are present, the estate goes to the Commonwealth of Pennsylvania.

How does this apply?

While this may seem like useless information if you have a will, that is not always so. For example, if a will is deemed to be invalid for whatever reason, intestacy may be the result. This is also possible where only part of a will is invalidated, although state law will often give the property covered by the invalid part of the will to the residuary, that is, the person who gets whatever is left after all specific bequests are made. Where there is no way to determine what the decedent intended, the intestacy rules may be the fallback.

State intestacy law can also influence other benefits and programs, even where a will is present and without problem. A common example is Social Security survivor's benefits. Under federal law, the Social Security Administration is required to use the intestate laws of the state in which the person was living at the time of death to determine whether someone qualifies: If the person could inherit under those laws, they are eligible for survivor's benefits. While it may seem obvious, such things are not always clear, and can also be significant where relationships differ from state-to-state (such as with same-sex marriage).

One somewhat unusual case bears this out by way of example. A man and his wife were married in 1999. Shortly thereafter, he was diagnosed with cancer and had his sperm frozen in case the treatment rendered him sterile. Through in vitro fertilization, his wife had twins, biologically his, 18 months after his death. She then applied for Social Security survivor's benefits. The U.S. Supreme Court decided that the question was whether the twins would be considered "children" for the purposes of intestacy under Florida law, where the couple lived at the time of the husband's death.

Estate planning is extremely important, in part to maintain control over the estate. But it is nonetheless important to know how the law works in your state. It is important that your plan be handled by an attorney with knowledge of all of these factors.

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