Content of the material
- What Happens If a Single Person Dies Without a Will?
- How Does Dying Without a Will Affect Unmarried Couples?
- What is a will used for?
- Where Property Goes After the Owners Death
- Non-Probate Assets
- When Assets Go Through Probate
- Putting It All Together
- Transfer of Property After Death Without Will
- The House Needs to Be Cared for If It’s Vacant
- If an Heir Has Died
- Survivorship Requirements
- Rights of a Deceased Heir’s Descendants
- Getting Through the Process: The Basic Checklist
- I Just Inherited A House. What Are My Options?
- You Don’t Have To Solve This on Your Own – Get a Lawyer’s Help
What Happens If a Single Person Dies Without a Will?
If a person dies single and childless, their surviving parents will get the estate. In case there are no surviving parents, the property will be divided among siblings (half siblings included) in equal parts. If one parent is dead, the property will be divided between siblings and the surviving parent. If a single person dies without creating a will and does not have any surviving parents, siblings, or descendants of siblings, the property will be divided equally among relatives on the father’s and mother’s side.
If a person dies single, but has children, the property will be divided among them in equal parts. The share of dead children (if any) will be passed on to their kids (the property owner’s grandchildren).
What Happens If a Married Person Dies Without a Will?
If a married person dies without a will, assets will be divided depending on how they were owned. While community property will go entirely to the spouse, separate property will be divided among the spouse, siblings, and parents. If the person was married multiple times, the entire property will pass on to the current spouse (if they have kids from the person). If, however, the property owner does not have kids from the current spouse, the property will be divided equally among them and the kids from another spouse.
What Happens If a Person in a Domestic Partnership Dies Without a Will?
Many states do not recognize domestic partnerships. If a person in a domestic partnership dies without a will, the state will decide how the property will be divided.
What Happens If a Person in a Live-in Relationship Dies Without a Will?
If a person living with a partner without marrying them dies, the surviving partner won’t inherit the property as intestacy laws only recognize relatives.
There is more to inheritance laws than meets the eye. At Johnston Thomas Law, we are committed to helping our clients navigate the complex legal framework. We are one of the most sought-after law firms in Santa Rosa. No matter how complex your case, our legal experts will come up with the right legal strategy for you. To talk to an estate planning attorney in Sonoma County, call us at 707-545-6542.
How Does Dying Without a Will Affect Unmarried Couples?
Dying without a will can be devastating to unmarried couples who are living together. Because intestacy laws only recognize relatives, unmarried couples don’t inherit the property of the other partner when one partner dies without a will. Unless there’s a will which clearly states a person’s intentions when they die, the decedent’s property will be divided among relatives, depending on their relation to the decedent.
What is a will used for?
A will is a simple, inexpensive legal document that states someone’s final wishes.
It’s used by the county court to make sure those wishes are carried out.
Some people also use a will to:
- Name an executor to carry out the terms of the will
- Name someone to manage property left to minor children
- Decide how debts and taxes will be paid
- Provide for pets
- Serve as a backup to a living trust
A will doesn’t cover every situation, but it’s much better than having nothing in place. Plus, a will saves family the headache and costs of a prolonged probate.
Where Property Goes After the Owners Death
Property is either a probate asset or a non-probate asset, depending on how it is held.
Non-probate assets don't have to go through the court-supervised probate process after the owner dies, because there's already a means in place to move the asset from the ownership of the deceased to living individuals. Other owners or beneficiaries take control of the deceased owner's assets by operation of law simply because they survive the deceased owner.
Non-probate assets include assets owned jointly with right of survivorship, including tenancy-by-the-entirety property and some community property. They include any type of asset that bears a beneficiary designation to transfer it after the owner dies.
When Assets Go Through Probate
As the name suggests, probate assets must go through a court-supervised probate process after the owner dies, because probate is the only way to get the asset out of the deceased owner’s name and into the names of the beneficiaries. Probate assets include sole-ownership property, tenants-in-common property, or any other asset owned jointly without right of survivorship.
Who inherits probate assets depends on whether the owner has left a last will and testament. The terms of the last will and testament should dictate beneficiaries if the owner left one. Otherwise, the intestacy laws of the state where the owner lived at the time of death will determine who inherits the owner’s assets, as will the intestacy laws of any other state where the owner owned real estate.
Laws for intestate succession typically begin with the surviving spouse, then consider direct descendants if any. More distant relatives rarely inherit unless the deceased's spouse or children are no longer living, or if the deceased never married or had children.
Putting It All Together You'll be left with an estate plan that will confuse your loved ones and possibly have them haggling in court if you don't take all of these rules into consideration.Go over each one of your assets, and take note of who owns what and who the designated beneficiary is, if applicable.Speak with an attorney if you have any questions.
Transfer of Property After Death Without Will
There are legal provisions in place for the transfer of property after death without will. These provisions are state-specific and known as intestacy laws. In most cases, the rules around the transfer of property after death without will dictate that the deceased’s spouse before the deceased’s children or descendants. If the deceased never married and/or had no children, immediate family members may be approached to inherit the property.
Regardless, the transfer of property after death without will can be a messy situation.
The House Needs to Be Cared for If It’s Vacant
It may take several weeks (or months) for an estate to get settled, and then it could take even longer to sell a house when the homeowner dies. This can be frustrating for beneficiaries who live out-of-state who suddenly need to care for a house that they inherited.
A house needs care, even if no one is living in it. The beneficiary will need to continue to pay for services like electricity, water, lawn care, and other upkeep that comes with a home. You may not think that an unused home needs electricity, but temperature control is important for maintaining the quality and structural integrity of the house. Plus, a house with a clean pool and a clear yard is easier to sell.
These are additional expenses that come with homeownership. When a homeowner dies, be sure to look for their monthly expenses and accounts with the water, electric, and cable companies. While you can cancel the cable and internet if no one is living in the house, you will want to transfer the electric and water payments to your name.
If an Heir Has Died
Obviously, an heir who has died can’t inherit. But if the heir was a close relative, such as a child of the deceased person, his or her offspring may be entitled to take some or all of what their parent would have received. Figuring out whether this is the case can be tricky, but it’s essential that you do so before distributing assets.
To inherit under intestate succession laws, an heir may have to live a certain amount of time longer than the deceased person. In many states, the required period is 120 hours, or five days. In some states, however, an heir need only outlive the deceased person by any period of time—theoretically, one second would do. Many states have adopted a law (the Uniform Simultaneous Death Act) that says for purposes of inheritance, each person is treated as if he had survived the other. Check your state law to learn the rules in your state.
Rights of a Deceased Heir’s Descendants
Intestacy laws often provide that if one of a group of heirs has died, his or her children inherit their parent’s share. In other words, they take the place of the parent. According to this concept (called the “right of representation”), children (or, in some cases, grandchildren) stand in the place of their deceased parent (or grandparent) when it comes to inheritance. Figuring out exactly who should inherit can be complicated depending on state law.
Getting Through the Process: The Basic Checklist
In most cases, the surviving owner or heir obtains the title to the home, the former owner’s death certificate, a notarized affidavit of death, and a preliminary change of ownership report form.
When all these are gathered, the transfer gets recorded, the fees are paid, and the county issues a new title deed.
Dealing with paperwork is never easy, especially after the loss of a loved one. But it’s worthwhile. It keeps the title up-to-date, facilitating a home sale when the time comes.
Community Property Statutes:
Alaska Stat. § 34.77.090
Idaho Code § 15-6-201
Tex. Probate Code Ann. § 451
Wash. Rev. Code § 26.16.120
Wis. Stat. Ann. § 766.58
I Just Inherited A House. What Are My Options?
Once you’re in contact with the mortgage servicer, you’ll need to decide what you want to do with the house. If there are multiple heirs or you aren’t the executor of the will, this could get complicated, especially if the people involved can’t come to an agreement.
We’ll talk about what to do when the situation is fairly straightforward, like an adult child inheriting a deceased parent’s house or a surviving spouse taking over a loan they weren’t originally signed onto. If your situation is more complex or you expect conflict among the heirs, it may be a good idea to speak with a lawyer.
One option is to simply sell the home to pay off the mortgage, and distribute any leftover funds from the sale to the heirs as dictated by the will or the laws in your state.
If you want to retain the home, you’ll need to work with the servicer to get the mortgage transferred to you.
If your finances can’t handle the monthly mortgage payments as the loan is currently set up, you can ask the servicer about loss mitigation options that could help you stay in the home and avoid foreclosure, such as getting a loan modification.
If there was a reverse mortgage on the property, the loan amount becomes due after the death of the borrower. If the heir to the home wants to retain the property, they’ll have to pay back the loan. Otherwise, they can sell the home or turn the deed over to the reverse mortgage servicer to satisfy the debt.
You Don’t Have To Solve This on Your Own – Get a Lawyer’s Help
Meeting with a lawyer can help you understand your options and how to best protect your rights. Visit our attorney directory to find a lawyer near you who can help.Or contact an attorney near you: