Understanding Intestate Succession: Navigating Without a Will
Learn how intestate succession affects estate distribution when there’s no Will, and how to protect your loved ones.
Written by Maria Zalessky
Summary:
When a loved one dies without a Will, intestate succession laws dictate how their estate is distributed, often leading to confusion and unexpected outcomes, especially for blended families or unmarried partners. Understanding these laws is crucial to ensure that assets go to the right people. At Zalessky Law, we specialize in probate and help families navigate the complexities of intestate succession while safeguarding the wishes of the deceased.
What Happens When Someone Dies Without a Will?
When a family member dies, not only are you faced with grief and loss, but also many perplexing questions and decisions at a very stressful time. The first question, after final arrangements are made, is if there is a Last Will and Testament. If it cannot be located, or there does not appear that one has been drafted, the second question is, “What happens next?”
"Intestate" refers to the situation in which a person dies without having made a valid Will. When someone dies intestate, their Estate - real estate, vehicles, money in the bank, and other assets they owned at the time of death - is distributed according to the laws of intestacy in the jurisdiction where they died, rather than the deceased person’s wishes. This can be modified with a Will or other estate planning tool, like a beneficiary or payable on death designation. If there is no such tool in place, however, intestate laws control. These laws prioritize immediate relatives such as spouses, children, and other family members, in determining who inherits the estate.
What is intestate succession?
Those who die without a Will or other estate planning tools leave their families at the mercy of the courts, which follow “intestate succession.” Assets will be passed according to Colorado law regarding who legally has the right to inherit from a deceased person’s estate. These intestate laws do not take into consideration the wishes and desires of the deceased but take a straight line in terms of legal or blood relatives. This can be a problem for blended families - partners that are not married, step-children who were not formally adopted, and other chosen family members. It is also a problem when a person has no contact with their blood relatives. Even if the family members are estranged, in an intestate succession scenario, intestate law dictates that the family members inherit.
How is inheritance determined without a will?
The law first looks to see if the deceased had a surviving spouse or children, then parent(s), siblings, or other relatives (called descendants) at the time of death. Descendants are determined by lineal relationships, or the direct ancestry or descent connections between individuals in a family. These relationships are based on a straight line of descent, either ascending (from child to parent, grandparent, etc.) or descending (from grandparent to parent to child).
For example:
Lineal Ascendants: Parents, grandparents, great-grandparents, etc.
Lineal Descendants: Children, grandchildren, great-grandchildren, etc.
How will the Estate be divided, according to the State?
Once it is decided who has survived the deceased and what the survivors’ relationships are, the intestate laws dictate who gets a portion of the estate. The intestate laws provide for a multitude of different scenarios, which can be confusing. Here are a few examples, but this is by no means an exhaustive list:
If there is a spouse but no children or parents, Spouse receives 100%
Has parent(s) but no spouse or children, parents get 100%
Has children but no spouse, children get 100%
Has siblings but no spouse, parents, or children, siblings get 100%
Seems pretty straightforward, right? Where it gets confusing is if there is a combination of descendants - spouse, parents and children?
If there is a spouse and the deceased has non-marital children (children from a different relationship) as well as marital children (children from the relationship with the surviving spouse), the first $279,000* goes to the spouse and the remaining Estate is divided 50% to the spouse, and 50% among the non-marital children.
If there is a spouse and also surviving parents but no children, the first $372,000* goes to the spouse and remaining Estate is divided 75% to spouse, and remaining 25% among parents
If there is a spouse and the deceased has non-marital children (children from a different relationship) but no marital children (children with the surviving spouse), the first $168,000* goes to the spouse and remaining Estate is divided 50% to spouse, and remaining 50% among the deceased’s children
*NOTE: Each amount (not the percentages) is subject to change with the current year’s cost of living adjustment.
What happens if there are no heirs?
What happens if there is no one “in succession”? Many people have no relatives, but have close friends, business partners, caregivers or people who are a part of their daily lives. If someone has no Will, spouse, children, parents, siblings, or other blood relatives, the Estate goes to the State of Colorado. This is heartbreaking for non-married partners or even close friends who live as family but are not legally recognized.
Is there a way to avoid probate or “intestate succession”?
Yes, there are some assets that are exempt from probate. Assets that are co-owned or have a named beneficiary on account are NOT are not affected by Colorado intestate laws. Some common examples are:
Joint bank accounts
Life Insurance with a named beneficiary
Retirement plans with a named beneficiary
Stock or Investment accounts with named beneficiary
Real property held jointly with right of survivorship
Bank accounts with a payable on death designation
How do I know what rules apply to my loved one’s estate?
It is almost impossible to navigate these scenarios and situations on your own. Zalessky Law has a specialty in probate cases, as we were founded in this area of law. We have helped countless families and heirs navigate this complex, confusing and sometimes frustrating process, with the objective of preserving assets for those whom the departed would surely have wanted to look after. We represent any member of the family or anyone with an interest in an Estate - heirs, descendants, and personal representatives in intestate actions.
How can I protect my family from intestate succession?
The best way to avoid this is to have an Estate plan or Will in place. We can also help with Estate Planning, so the people you love are not left in this situation, and to avoid the State of Colorado making all the decisions for you. Zalessky Law can create a comprehensive set of documents, including Medical and other Powers of Attorney, so that not only your assets are distributed exactly as you desire, but have those you love and trust making the decisions for you, if you are unable.
What should I do if there's no Will?
We understand that life can change in a moment, raising questions for the family left behind. If you need help, please call us on 303-970-9717 or email us at info@zalesskylaw.com for a free consultation with an attorney.