A Public Example of What Can Happen if You Die Without a Will

Die with a will and your wishes should be carried out. Die without a will and state law takes over, regardless of what you might have intended.

When you die without a valid will, which is referred to as dying “intestate,” a probate court takes over the handling of your estate. The probate court appoints a person or firm to handle any claims made against the estate, pay off all creditors, and distribute whatever assets remain under the laws of that state.

Types of intestate distribution

There are three common types:

  1. Per stirpes
  2. Per capita
  3. Per capita with representation

Per stirpes (Latin, “by the roots”)

Die without a will: Per Stripe DistributionIf a decedent’s estate is distributed per stirpes to his children, the estate will be divided by the number of the children he had. If one of the children predeceased the decedent, that child’s share will go to his heirs.

See the example to the right. If Steve is survived by his sons Aaron, Ben, and Chad, under per stirpes, each gets 1/3 of the estate. However, if Aaron predeceases Steve, Ben and Chad will each get 1/3 of the estate, and Aaron’s share will be divided between his sons, Dan and Ed, who each get 1/6 of the estate.

Per Capita (Latin, “by the head”)

If a decedent’s estate is distributed per capita to his children, all the living members of his children will receive an equal share of the decedent’s estate. However, if one of the children predeceases the decedent, then his or her share would pass to the other children of the decedent rather than to his descendants.

Die without a will: Per Capita DistributionSee the example to right. If Steve is survived by his sons, under per capita, each son will get 1/3 of Steve’s estate. However, if Aaron predeceases Steve, then Aaron’s share would be split between Ben and Chad, with each receiving a 1/2 share. None of the grandchildren would be entitled to any part of the estate.


Per Capita with Representation

Texas’ laws of intestate succession specify that if all the heirs are of the same degree of relationship to the decedent, meaning they are all children or all grandchildren, then the estate will be distributed per capita.However, if they are not of the same generation, for example, if both children and grandchildren survive, then the younger generation will only be entitled to the that portion of the estate that older generation would have received had they survived.

Die without a will: Per Capita with Represenation DistributionSee the example to right. If Steven is survived by all of his sons, under per capita with representation, each of his children would get 1/3 of the estate. If Aaron predeceases Steve, Ben and Chad will each be entitled to 1/3 of Jack’s estate, and Adam’s share will be divided equally between his children, Dan and Ed. But, if all of Steve’s children predecease him, then each grandchild would be entitled to an identical share of the estate: in this case, 1/5.

Compare that to a strict per stirpes distribution, which would have required that the grandchildren share what their parent would have been entitled to had they survived. So, in our example above, Dan and Ed would share 1/3, Fred would get 1/3 to himself, and Gerry and Harry would share 1/3. As a result, the grandchildren would receive different shares of the estate.

Complicated Family Structures

The examples above deal with a fairly simple nuclear family unit. Sometimes, however, modern families can be complicated.

Last year, the musician known as Prince died with without a will detailing how his estimated $300 million estate would be handled. It would be up to the probate courts of Minnesota to handle this problem.

Dozens of people came forward claiming to be Prince’s son, daughter, or another relative. The probate judge ordered DNA testing. When the DNA did not support their allegations, the judge denied their claims.

There is, however, still a battle as to who will be the final heirs of Prince. The probate judge has ordered that Prince’s full sister and five half-siblings all qualified as heirs. The hold-up is whether two others, a reported niece and grand-niece, also qualify as heirs.

These two claimed relatives are the daughter and grand-daughter of Prince’s late “brother,” Duane J. Nelson, Sr. So what is the problem? It hinges of what “brother” really means. Prince’s father called Duane his son and was listed on his birth certificate, but he was not Duane’s biological father. As a result, Duane’s children do not have a genetic relationship with Prince. In addition, Prince’s father never lived with Duane nor supported him financially, but they called each other father and son. Now there is a battle between the relatives as to who is a legitimate heir of Prince.

With today’s mobile society and extended family relationships, it is easy to see that sometimes the courts have to go against what every one in the family “knows” the decedent wished because the court must follow the law. In addition, in cases with large estates, infighting can be quick, expensive, and ugly. Some relationships never recover.

Better to not die without a will.

I was inspired to write this  post after watching Bruno Mars’ tribute to Prince during the Grammys.