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Does the State Get All of My Property if I Die Without a Will?

bbmnyLike life’s other burning questions – “Why are we here?” “What does it all mean?” and “How DO I survive a zombie apocalypse?” – you may be wondering: “What happens to my assets if I die without a will?” It’s a common myth that if you die without a will, your property goes to the state in which you reside. Indeed, we occasionally hear about such situations: in New York, a man died with $40 million, no will, and no known heirs. But since it’s unlikely that Mythbusters will tackle this one anytime soon, here’s the truth: each state has a statute that gives you a default estate plan even if you don’t have a will.  While it’s tempting to take the easy route and leave your estate planning to Uncle Sam, what the state dictates and what you would choose might not always be the same. For example, if you die in Illinois, the statute states:

  • If you are survived by a spouse but no kids, everything goes to your spouse.
  • If you are survived by kids but no spouse, everything is distributed in equal shares to your kids. For example, if you have two kids, each kid gets one-half of your property.

The statute mimics what most people are likely to do with their assets. Not bad, but the statute continues:

  • If you are survived by a spouse and kids, one-half to your spouse and one-half in equal shares to your kids.

For many parents – especially those with young kids – this sounds like a terrible idea. Do you really want to leave half of your estate to your children while your spouse is still alive? Do you want your children taking control of the assets (read: $$$$) at age 18 without any restrictions? Yeah . . . probably not. Covering all scenarios, what happens when you have no spouse and no kids? The statute gives away your property in the following order:

  • In equal shares to your siblings and parents (with a double share to a surviving parent if one is deceased). For example, if your mother is living but your father is deceased, and you have three siblings, it goes two-fifths to your mother (she gets a double share) and one-fifth to each of your three siblings. If you have no siblings but have nieces and nephews, your siblings’ share will be divided among your nieces and nephews.
  • If your have no living siblings (and no living nieces or nephews) or living parents, then one-half goes to your maternal grandparents, and one-half to your paternal grandparents. If a set of grandparents isn’t living, their share passes down to their living descendants (first your aunts and uncles, then your first cousins, then the children of your first cousins—i.e. your first cousins once removed).

Still with me? If there are no aunts, uncles, first cousins, or first cousins once removed, your property still doesn’t pass to the state.  The statute continues on (and on) to your great-grandparents and their descendants, i.e. out to your second cousins and second cousins once and twice removed.  If there is still no relative found, the statute looks for your “nearest kindred of equal degree”—basically anyone remotely related to you (degree is determined by a table of consanguinity). If a relative still cannot be found, then, and only then, does the property pass to the state. As you can see, it is very unlikely that the state would get your property after you die.  However, just because it is unlikely, doesn’t mean that everyone shouldn’t have a will. After all, wouldn’t you prefer that your money goes to a friend or your favorite charity instead of second cousin (twice removed) Vinny who always gets inappropriately drunk at family reunions? Bottom line: drafting a will takes only a modest amount of time and effort, and doing so ensures your wishes are carried out – even if you don’t survive that zombie apocalypse.