Dying Without a Will – Intestate Succession
What happens if I die without having a PA will? What happens if I have a will and it does not dispose all of my property? Will the Commonwealth of Pennsylvania get everything? These are common questions, and this article will hopefully clear up some common misconceptions. A person who dies without a will in PA is said to have died “intestate.” When this occurs, a common misconception is that the state will take everything. However, in most cases, this is untrue. The Commonwealth of Pennsylvania has developed a set of laws which guide the disposition of a person’s property if he or she dies intestate or if all his or her property is not disposed of by a will. These laws are commonly referred to as the law of Intestate Succession in PA, and they can be found at 20 Pa.C.S.A. § 2101 et seq. These laws spell out who gets what in these situations. In general, whether a person can be an heir depends on his or her relationship to the deceased.
The Pennsylvania laws of Intestate Succession are designed to protect and provide for the surviving spouse and children of the decedent. Pennsylvania wants to assure that these individuals are provided for in the event of the untimely demise of a loved one. In addition to the surviving spouse and children, the law may also provide an inheritance for the decedent’s parents, siblings, aunts, uncles, and their children and grandchildren.
So how does this law work? As complicated as the concept may seem, the law is laid out quite simply. If the decedent is survived by a spouse, the amount he or she will receive varies depending on which other relatives of the decedent also survive. The law controlling what portion of the decedent’s estate the surviving spouse receives can be found at 20 Pa.C.S.A. § 2102. It can be summarized as follows:
- No surviving children. If the decedent was survived by his or her spouse and had no surviving children or parents, the surviving spouse receives the decedent’s entire estate. However, if the decedent was survived by his or her spouse and one or both parents, but had no surviving children, the surviving spouse would be entitled to the first $30,000.00 of the estate, plus one-half of the remaining estate, if any. The decedent’s parents’ share is dependent on other factors discussed below.
- Surviving children. If the decedent was survived by his or her spouse and had surviving children, all of whom were also the surviving spouse’s children, the surviving spouse will receive the first $30,000.00 of the estate, plus one-half of the remaining estate, if any. However, if the decedent was survived by his or her spouse and had surviving children, at least one of whom was not also the surviving spouse’s child, the surviving spouse will only receive one-half of the estate. Under these circumstances, the surviving spouse would not be entitled to the first $30,000.00. The reason for the difference in these two scenarios is that the law presumes that the surviving spouse will care and provide for children of his or her own, but does not make the same presumption for children that are not his or hers. Regardless of how the child was treated by the surviving spouse during the decedent’s lifetime, the legislature did not want to take the chance that child would not be provided for after the decedent’s death.
What if there is no surviving spouse? What about the portion of the estate that is not going to the surviving spouse? The laws of Intestate Succession at 20 Pa.C.S.A. § 2103, provide for the share of the estate, if any, that is not going to the surviving spouse or which passes if there is no surviving spouse. This section of the statute regulates the passing of the remaining share.
- Children. First, to the children of the decedent.
- Parents. If no children survive the decedent, the decedent’s parents share the estate equally; if only one parent survives, the surviving parent takes the entire estate. Recall that, if the decedent was survived by a spouse, the spouse will take the first $30,000.00 and one-half of the remaining estate. So, in the event there is a surviving parent of the decedent, the surviving spouse will get $30,000.00 plus half the remaining estate and the surviving parent will receive the other one-half of the remaining estate. If both parents survive the decedent, they will share the remaining one-half.
- Brother, Sister, or their Children. If no children and no parents survive the decedent, then the estate will be distributed to the children of the decedent’s parents (the decedent’s siblings and their children).
- Grandparents. If no siblings survive the decedent, then the grandparents of the decedent shall receive, one-half to the paternal grandparents and one-half to the maternal grandparents, and their children.
- Uncles, Aunts, and their Children and Grandchildren. If no grandparents survive the decedent, the estate is distributed to the decedent’s uncles, aunts, and their children and grandchildren.
- Commonwealth. If no one mentioned above survives the decedent, then the Commonwealth of Pennsylvania collects.
It is important to recognize that there are many different scenarios that can take place when distributing an intestate estate in PA. The law of Intestate Succession at 20 Pa.C.S.A. § 2104 provides for two methods of distribution, and which method is used depends on the degree of the relationship of the survivors. There is per stirpes distribution, which is used when the decedent’s ancestors are not all in the same degree of relationship, and there is per capita distribution, which is used when all ancestors are in an equal degree of relationship. The confusion that is created in this area is why it is important to sit down with an attorney to discuss the specifics of the family’s relationships in the event that a loved one passes on without a will.
It should be noted that before the decedent’s estate is distributed, the decedent’s debts, taxes, funeral expenses, and the expenses of administration are paid first, just like in PA estates where there is a will. What remains is what makes up the decedent’s distributable estate. It should also be noted that so-called “will substitutes” such as joint tenancy property, life insurance payable to beneficiaries other than the estate, bank accounts payable on death to specified individuals, etc., will pass in accordance with their terms and will not be part of the decedent’s estate to be distributed by the laws of Intestate Succession.
Needless to say, one can achieve a great peace of mind by having a will professionally drafted. This will allow one to know exactly who will receive what without worrying about the laws of intestacy and with the added benefit of being able to designate an executor to handle the administration of the estate. However, in the event that a person dies without a will in Pennsylvania, rest assured that the Commonwealth, in most cases, does not get everything!
The lawyers at Wolf, Baldwin & Associates, P.C. can advise you about what would happen to your property if you die without a PA Will, and we can explain to you the reasons why you might want to have a Will. If you want us to help you draft your Last Will and Testament, we will not only consider your wishes in coming up with an estate plan, but we can also advise you of any tax consequences. You deserve a lawyer who will take the time to explain all the possibilities to you. The lawyers of Wolf, Baldwin & Associates, P.C. have written thousands of Wills over the last thirty years. Please click here to contact us today.