WHO INHERITS WHEN SOMEONE DIES?
When someone dies without a will, we say that the person died “intestate.” The law of intestacy explains who will inherit the property of a person who dies without a will. Each state has its own law of intestacy. I will explain the law in Hawaii. It is quite complicated.
Neither a will nor the intestacy law affects property that is held jointly or in tenancy by the entirety, that has a beneficiary named, or that is in a trust. For example, if a savings account or real estate is held by two or more people as joint tenants, and one of them dies, it goes equally to the surviving joint tenants. If a husband and wife own property as tenants by the entirety and one of them dies, it goes to the survivor. Life insurance death benefits, IRAs, 401(k)s, 403(b)s, annuities and “pay on death” accounts go to the beneficiary named. Assets in a trust go to the trust beneficiaries.
Assets which are owned by only one individual without a beneficiary named and assets which are owned by a person as a “tenant in common” go according to the person’s will. If the person dies without a will, these assets will go according to the law of intestacy.
If the person who died without a will was survived by a spouse, but had no living descendant and no living parent, then everything goes to the surviving spouse. (A registered “reciprocal beneficiary” or civil union partner has the same rights as a spouse.) If the person had one or more living descendants, but all descendants are also descendants of the surviving spouse, and if the surviving spouse has no other descendant, then everything goes to the surviving spouse.
If the person was survived by a spouse and one or both parents, but had no living descendant, then the surviving spouse gets $200,000 plus three-fourths of the balance of the estate. The other one-fourth goes to the surviving parents equally, or to the surviving parent if only one is living.
If the person was survived by a spouse and by one or more living descendants who are also descended from the surviving spouse, but the surviving spouse also has one or more other descendants, then the surviving spouse gets $150,000 plus one-half of the balance of the estate. The other one-half goes to the person’s descendants, by representation. “By representation” means to children equally, with the shares of deceased children combined and then divided equally among the children of the deceased children.
If the person was survived by a spouse and by one or more descendants who are not descended from the surviving spouse, then the surviving spouse gets $100,000 plus one-half of the balance of the estate. The other half goes to the person’s descendants, by representation.
If the person died with no spouse, then everything goes to the person’s descendants, by representation. If the person had no descendants, then everything goes to the person’s parents equally, or to the surviving parent, if the other has died. However, if the person who died without a will was a minor, then a parent cannot inherit if the parent deserted the child for at least 90 days. Also, if the minor child was in the custody of another, a parent cannot inherit if the parent failed, for a period of one year or more, to communicate with the child or to pay court-ordered child support when able to do so.
If the person dies with no spouse, no descendant and no parent, then everything goes to the descendants, by representation, of the parent of the person. If the person dies with no spouse, no descendant, no parent and no descendant of parents, then one-half goes to the paternal grandparents or to the survivor of them, or if none, to their descendants, by representation, and one-half to the maternal grandparents or to the survivor of them, or if none, to their descendants, by representation.
With a will or trust, you get to choose who inherits from you.
© OKURA & ASSOCIATES, 2012