Who Gets What When You Die Without A Will? A Review of Pennsylvania Intestacy
Thursday, November 10th, 2011When a person dies without a will, (intestate), his or her property will go through a court supervised intestate process.
That process is a set of inflexible rules created by state law that dictates how the deceased person’s property and assets are distributed. Only a will, or a non probate beneficiary designation (a combination of the two is usually best) will prevent these state rules from applying to your assets.
Want to avoid the intestate process? Make sure to execute a will and make sure to coordinate your will with your non probate property such as IRAs and life insurance payable under a beneficiary designation.
Here’s a brief video from Bloomberg on why it’s important to have a will. You can skip the ads.
If you have a will click here to read Is It A “Probate Asset” Or Not”? to find out more about which of your assets go through probate.
The Pennsylvania Intestate Process
If there is no will the intestate process begins with the Orphan’s Court appointing a personal representative to pay creditors, to receive legal claims, and manage the estates expenses. Estate expenses range from the decedents (person who has died) unpaid bills, loans, administrative fees, costs, and payments to the administrator for their service.
After the court appoints the administrator and the expenses are paid the intestate law will identify heirs for distribution of assets. Here is a summary of Pennsylvania intestacy statutes, which dictates to the court and the estate as to the heirs of a given estate when there is no will:
| State | Priority Under Intestate Laws | When there are Children of Different Generations (grandchildren) |
| PA | 1. Spouse and no children or parents – everything to spouse.
2.Spouse and parent (no children) — everything to spouse. * 4. Children and no spouse — the children take all. Shares are divided equally among the children in the same generation. 6. No spouse, children, or parents –brothers, sisters, or their children take all. Shares are divided equally as long as those eligible are in the same generation. See 20 Pa. Con. Stat. Ann. §§ 2101, et. seq. (2002). |
The estate is divided into as many shares as there are living members of the nearest generation of children to the victim, including deceased children in the same generation who left behind children. Each surviving heir in the nearest generation to the victim receives one share and the share of each deceased person in the same generation is divided among his or her descendants in the same manner.
See 20 Pa. Con. Stat. Ann. §§ 2101, et. seq. (2002). |
- Pennsylvania intestate statute was amended on October 3, 2003. See 2003 PA Legis. Serv. 26 (West).
- This is a general summary only. It does not include distributions when none of the relatives set forth in these charts is alive. This is not a substitute for state law, and to the extent state law varies with this chart, state law controls. For more information, an attorney familiar with state statutes and case law should be consulted.
If no heirs can be identified the estate and its property and assets will be given to the state.
If there are heirs the administrator will distribute the assets to the heirs according to Pennsylvania’s probate laws.
If you do not have a will and die the probate court will distribute your estate according to intestate law. And, Pennsylvania’s intestate law may vary significantly from your actual wishes. This is especially true if you have children from a prior marriage, want your spouse to have all of the assets, want to include other people or charities.
Why? No close friends are factored in and family to whom you are not close to may inherit the most. No charities are included and your spouse may not even get to receive or use your assets.
In the end, administering an estate without a will may not do what you want, it may not select the administrator that you desire, and it may be considerably more expensive than probating an estate with a will.
Questions about having a simple will, trusts for children and grandchildren, special needs trusts?
Please email me at dfrees@utbf.com
