How Does Intestacy Work?

On Behalf of | Nov 30, 2015 | Firm News

Despite the soundness of the estate planning strategy of having a will, not everyone will have prepared such a document before he or she dies. This can be for any number of reasons: few of us spend much time thinking about our own demise and its effects on those we leave behind; sometimes death comes unexpectedly and at an early age. Regardless of the reason why, dying without leaving a will to govern how your estate should be allocated creates a challenge that Minnesota law attempts to overcome through its intestacy laws.

The main purpose of intestacy law is to provide for a uniform and predictable method of estate distribution in the absence of a will. Intestacy creates a hierarchical structure through which the decedent spouse, children, parents, siblings and others can take from the estate. Thus, for example, if you die and leave behind a spouse, then under intestacy your spouse inherits the entire estate even if your marriage produced children; but matters can become more complicated if you or the spouse has children from another relationship, in which case a formula kicks in allocating the first $150,000 of the estate to the spouse along with half of the remaining balance with the descendants inheriting the remainder.

If you leave behind children but no spouse, then the children take the entire estate; similarly, if you die leaving behind no spouse or children then if your parents are still alive they will take the entire estate. Finally, if no spouse, children or parents survive you, then if you have any brothers or sisters they will claim the estate.

This summary constitutes only a general introduction to the topic of intestacy law. It cannot and does not purport to be a comprehensive treatment of the topic (for example, when it comes to what children can claim there are further considerations such as foster children or children you have placed for adoption, or even posthumous children, as well as a survivorship period requiring a person to outlive you by at least 120 hours). Accordingly, you should not take what you read here as legal advice.

If you do find yourself in need of assistance preparing a will, or are in a situation in which a loved one has died without having prepared a will, a good source of information and assistance is an attorney experienced with Minnesota probate and estate administration law.