Jacinto Rosalez: What Happens If You Die Without A Will?

Dying without a will in legal terms is referred to as intestate. In Utah, your estate will be distributed to your family and close relatives as required by the Intestate succession laws. If there are no relatives, who can be located, then the entire estate goes to the state. The intestacy laws usually apply to property that would have been included in a will if the person had written one. The estate does not include assets that can be passed to people at death through joint tenancy or in some cases, beneficiary designation.

Relevant terms in understanding the relationship between family and the intestacy

Spouse

This term refers to the individual who is the legal partner of the decedent. The state of Utah recognizes common law which states that a couple who lives together as if legally married and is recognized by the world as if married; have same legal rights as those who are legally married under the law.

Children

Children are usually referred to as direct descendants of the intestate. Grandchildren and great-grandchildren are also recognized in the same category. Children who have been legally adopted also count as descendants. Children who are born outside marriage also have equal legal rights as those born in a marriage. Issues usually arise on the paternal side since the maternal side easily allows inheritance from one’s mother. The child will, however, have to come up with evidence to prove paternity for the legal claim to be valid. There are three ways in which a child born out of a marriage can go about claiming the intestate’s property.

● Acknowledgment of paternity by the father through a written statement

● Proof that the father publically proclaimed the child as his own

● Declaring paternity through a court order

Siblings

Siblings include the brothers, half brothers, sisters, and half-sisters. Siblings have a legal right to the estate claim as long as they are alive at the time the deceased’s passing.

Stepchildren

If such children had not been legally adopted, then they do not count as far as inheritance is concerned. The state does not recognize stepchildren who are not legally adopted as children of the decedent.

Administration of assets under intestacy laws in Utah

When you die without a will, the court will appoint an executor or personal representative to oversee the administration of your assets. All the assets that are passed over to beneficiaries and descendants have to be in the name of the deceased. Such property is divided among the beneficiaries through the guidelines of the state’s intestacy laws.

When one dies intestate, the probate process is still put into effect for the distribution of the assets. The difference comes in when the court has no will to interpret and so instead applies the intestacy laws for property allocation.

Dying without a will while single in Utah

Dying without a will as a single without any children means that your assets will be allocated to your parents if they are both alive at the time. If both your parents are deceased, then your property will be transferred to your siblings. If you have half-siblings, then they might also be considered in the estate distribution. If you have no siblings or the children of the siblings, then half of the estate will go to your close relatives on the side of your mother and the other half to your father’s side.

If you are single but have children, then all your property will be given to them equally. If your child passed on before you, then his/her share will go to the children (your grandchildren).

Dying without a will while married

Your spouse is entitled to all your estate when you pass on. A legally acknowledged spouse will be allocated your property. If you had children, then your spouse will be required to use the inheritance for their upbringing.

The subdivision of assets

If the deceased passes on while having a child, but without a spouse, all the surviving children will inherit all the assets. If the deceased passed on and is survived with a significant other but with no children, then the surviving spouse will inherit all the assets and properties. If the deceased is survived with both a spouse and children, then the spouse is bound to inherit all the properties and assets. In this case, the law assumes that the spouse will use the property to take care of the children.

If the deceased is survived with a spouse and children from another person, the surviving spouse is entitled to get the initial 000 from your entire intestate estate plus another half of the remainder. The other half is inherited by the children. If the deceased is survived with parents and there is no spouse or children, then the parents are entitled to receive the whole intestate estate. If the deceased is survived by only siblings i.e., there are no living parents, spouse, or children; then the siblings will inherit all the property.

Common assets that typically pass to individuals at death and are outside intestate laws include:

● Joint tenancy bank accounts

● Communal property containing rights of survivorship

● Retirement benefits

● Statements that are payable on death

● Accounts that are transferable on death

● Joint tenancy property

● Living trusts property

● Life insurance

The assets named above are transferred automatically to the individuals who have been stated as the beneficiaries. The assets are also allocated to surviving joint owners of a living trust. However, if such accounts have no beneficiaries, then the assets are placed under the intestacy laws.

What the spouse is entitled to under intestacy laws

As mentioned earlier, the portion that is inherited by the spouse after you die depends on whether you have surviving children or other descendants. For instance, if you die without any children or if you die and have children with your spouse, then he or she is entitled to all our properties. In case you are survived with children from somebody else other than your current spouse, then he or she will get the first $75 000 together with half of the remainder of your property.

In case the significant other has to share your estate with other beneficiaries, then there are different rules that have to be considered. The amount of all transfers done without probate will be added to the value of the intestate property. Such amount is regarded legally as an “advancement” and therefore will have to be deducted from the spouse’s share of the property. If the added amount is more than what the spouse is entitled to receive then rather than refunding anything, they will not be eligible for any more inheritance.

What the children are entitled to under intestacy laws

Children are the most vulnerable group to leave behind without a will. In case you die without a will, then the share of each child is dependent on many factors. First of all, the children have to be legally yours under the law. Furthermore, their share will also depend on whether you have any spouse or not. The legal issue is not always clear among many families, for instance,

Children who were legally adopted by you are entitled to an equal share of the inheritance just like your biological children. The children you place for adoption and have already been legally adopted by another family are not entitled to inherit anything. The grandchildren are only entitled to receive anything if their parents are not alive to receive their share.

According to Utah Code Section, 75-2-114 children born outside of wedlock are entitled to a portion of inheritance if you acknowledged their paternity or otherwise their paternity is proved in the court of law.

According to Utah Code Section75-2-104, children who you conceive and are born before your death (posthumous children) are entitled to a certain portion of the estate if they survive at least 120 hours after their birth. Section 75-2 further states that a child conceived during your marriage to your spouse is regarded as your biological child and deemed to receive a portion of the property. However, stepchildren and foster kids that you did not legally adopt are not eligible for any inheritance.

Important factors to consider under intestate laws in Utah

Advancements

These are assets that are not transferred under probate. They are critically explained in Utah Code Section 75-2-109 and 75-2-205. Such items are considered an advancement to a relative’s share of the inheritance. Those assets, together with gifts received in contemplation of death, are generally subtracted from your spouse’s share of the estate.

Posthumous next of kin

These are family members who are conceived before death but born after the death of the intestate. The matter is explained in Utah Code Section 75-2-104. Such relatives are bound to receive a share of the estate if they survive at least 120 hours after their birth.

The duration of survivorship

To be eligible for inheritance under Utah’s intestate laws, the survivor must outlive you for a period not less than 120 hours.

Immigration conditions

Under Section 75-2-110, a family member is entitled to a fair share of inheritance regardless of their citizenship status.

Half-relatives

The issue of half relatives is determined under Section 75-2-104 of Utah Code. It involves relatives such as half-brothers or sisters. Under the law, they are entitled to the same share of the inheritance, just like “whole relatives.”

Reasons why writing a will is essential.

Failure to write a will result in the state to make the decision as to who inherits your property. All the assets under your name, such as real estate and bank accounts will be distributed as the probate court finds necessary. If you would prefer to have a say in who gets what, then writing a will is probably for the best.

Decide on who gets to raise your kids

Parents always strive to meet all the needs of their children. Since death is inevitable, it is important to have a plan in place knowing that if you die, someone else who is responsible will be able to take care of your kids properly. You can include such information in your will by also designating a property guardian for your children until they become adults. If you leave the decision up to the court, then in the event that both you and your spouse die then social services steps in. The individual appointed by social services might not be the person you would have considered.

Reduce conflict in the family

The absence of a will might cause disagreements and tension as family members and relatives fight over your possessions. Everyone will have an opinion on what you would have wanted in terms of property distribution. Writing a will ensures that property is allocated as you have requested and so relatives will have to accept and comply with your decision.

The welfare of your pets

The state does not recognize pets in the intestacy laws. A will indicating that a certain portion to be used in taking care of your pets will ensure that they are not neglected. This is especially true for single individuals who lived with their pets. You can also include information on who should take care of your pets when you die.

For someone who is passionate about giving back to society by supporting an initiative, then a will see to that effect. You can include in your will a certain percentage which you would want to be allocated for a good cause. A will can also be used in donating your organs when you pass on. One can discuss such preferences with the family just in case the will is found later after your funeral.

Knowing that the future of your loved ones is taken care of by drafting a will can be relieving. Death can occur unexpectedly, therefore, leaving no room for planning. It is important always to have a will clearly stating how you would want your property to be distributed.

Estate Planning Attorney Free Consultation

When you need legal help with a last will and testament, whether you have a full estate plan, or whether you simply want to avoid probate by having a living trust, please call Ascent Law LLC (801) 676-5506 for your Free Consultation. We want to help you.