By David S. DeRose, Esq.

We continue to encourage our clients to prepare a will so as to be in complete control of those who will benefit from the passage of their property at death. The importance of a will to direct the transfer of assets and to select who will administer your estate after you die cannot be overstated. However, many people fail to prepare a will — they therefore die “intestate.”

What happens when you die without a will? Since there is no writing to designate to whom your property passes, Pennsylvania law establishes an order, called intestate succession, that must be observed.

The intestate law mandates the following:

• The surviving spouse is entitled to the entire estate if there are no living children, step-children or parents.
• The surviving spouse is entitled to the first $30,000 of value in the estate, plus half the balance of the estate if the decedent is not survived by issue (children, grandchildren, or great-grandchildren) but is survived by a parent, or the decedent is survived by issue, all of whom are issue of the surviving spouse.
• The surviving spouse is entitled to one-half of the estate, where the decedent has issue who are not issue of the surviving spouse.

The above information probably seems confusing and … it is! In plain English, we need to determine first if the person who died, called the decedent, has a surviving spouse, and if so, calculate his or her share. That means we must examine whether any children or grandchildren exist from the current marriage or prior marriages or relationships. We then need to apply the above distribution rules.

Once the beneficiaries have been determined, we next take a look at the assets and how they are titled. If there are any assets held by the decedent in his or her name alone at the time of death, then these resources become estate assets and will be distributed pursuant to the intestate succession rules. When assets are owned jointly, such as a family home or bank account in joint names, there may not be any estate to process. Those types of assets usually pass directly to the survivor by operation of law.

By way of example, if a husband dies, survived by a wife and three children who are all children of that marriage, under the intestate laws, the wife would be entitled to the first $30,000 of the estate’s value, plus one-half of the remainder. The children are next in line and are entitled to the remaining portion of the estate. If the husband owns a home jointly with his wife, the value of that home would not be included in calculating the wife’s share, since the home would not be an estate asset. It would pass directly to the wife.

In the absence of a surviving spouse and issue, the intestate law awards all property to the parents of the decedent. If no spouse, issue or parents survive, the estate would then pass to the decedent’s brothers and sisters, or the issue of the brother and sisters, that is, the nephews and nieces of the decedent. Next in line would be grandparents, uncles, aunts, and their issue and others. Ultimately, if the decedent is not survived by any of these relatives, the Commonwealth of Pennsylvania becomes the decedent’s beneficiary. Isn’t that reason enough to create a will?

Wills make sense! A will affords you the opportunity to make certain that your property passes to those you wish to receive it. You can assure that property passing to minor children can be placed in trust instead of having it distributed to them on their 18th birthday. You can designate who will administer your estate and who will become the guardian for your minor children. Who should make these kinds of decisions? The answer is no one but you. The next time you put off the subject of writing or amending your will, I hope you will consider the consequences and pick up the phone to make an appointment to write that will!