What Happens When a Person Dies Without a Will?
The Law of Intestate Succession
Writing a will is one of the tasks in life that many people want to delay as long as possible. No one wants to think about dying, and writing a will is one of the most concrete ways in which a person has to ponder his or her own death. As a result, many people die before they ever write a will.
When a person dies without a will, that person is said to have died intestate. When this occurs, state law dictates how that person's assets are divided by the probate court. While all of the states follow the same basic principles of descent and distribution, each has its own specific laws on how to distribute a decedent's estate.
This article explains the basic system that is used to distribute assets when probating an intestate estate in Alabama. Unfortunately, there is no way to explain the laws of descent and distribution without using legalese and complicated phrasings, so some of the following may require more than one reading to fully understand.
In Alabama, when a person who is married dies without a will, the first consideration is the spouse. The amount that the spouse received depends on whether the decedent has living parents or issue (children, grandchildren, and other lineal descendants).
If there are no surviving issue or parents of the decedent, then the spouse receives the entire intestate estate. This simple scenario presents few complications, since only one person has a claim to the estate. However, the system grows increasingly complex beyond this point.
If there are no surviving issue but the decedent is survived by a parent or parents, the spouse receives the first $100,000 in value from the estate, plus one-half of the balance of the intestate estate. The remaining half goes to the parent or parents of the decedent.
If there are surviving issue all of whom are also issue of the surviving spouse, then the spouse receives the first $50,000 in value from the estate, plus one-half of the balance of the intestate estate. The remaining half goes to the issue by representation, and nothing goes to the decedent's parents. Receiving a share by representation means that the issue is receiving a share because the parent of that issue is already dead. The issue of any predeceased person takes their ancestor's share of the estate under the laws of intestate succession.
If there are surviving issue and one or more of them are not issue of the surviving spouse, then the spouse receives one-half of the intestate estate. The issue take the remaining half of the estate by representation.
The share distributed to the issue is divided according to the degree of kinship. If the issue are all of the same degree of kinship to the decedent then the estate is divided equally among them. If they are of an unequal degree of kinship, then those of a more remote degree take by representation. For example, each child would receive a full share of the estate, but if any of the children of the decedent had predeceased him or her, then the children of the predeceased child would equally divide the predeceased child's one share. Thus, if Allen dies and is survived by two of his three children and by two grandchildren who are the children of a predeceased child of Allen's, then his two surviving children each receive one-third of his estate and the two grandchildren equally divide the one-third which would have gone to their predeceased parent.
If the decedent is not survived by a spouse or issue, the decedent's parents take the entire estate. If the decedent is not survived by a spouse, issue, or parents, then the decedent's siblings or issue of the decedent's siblings take by representation. If the decedent is not survived by parents, spouse, siblings, or issue of siblings, then one-half of the estate is divided among the maternal grandparents and their issue by representation, and one-half of the estate is divided among the paternal grandparents and their issue by representation. A visual representation of this can be seen on a chart called the table of consanguinity.
Finally, if there is no surviving spouse, no surviving parent, no surviving issue, no surviving sibling or sibling's issue, and no surviving grandparent or grandparent's issue, then the property of the decedent passes to the State of Alabama. The legal term is that the property escheats to the state.
When a person dies without a will, determining how to divide the decedent's estate can become complicated very quickly. However, all of the laws of intestate succession can be avoided by properly planning for death with a will and other estate planning documents.
