Intestacy Laws – Why Most People Still Need a Will

Obermayer Rebmann Maxwell & Hippel LLP
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Obermayer Rebmann Maxwell & Hippel LLP

Many people are fearful of contemplating their own deaths. However, failure to plan or consider what should happen to your assets at death may be very harmful to your family. If you fail to plan and die without a will, the disposition of your assets (in your individual name) will be governed by the intestate laws of the state of your domicile. Many people believe that state intestacy laws will provide for all of their property to pass to a surviving spouse, and only to the children only if there is no surviving spouse. However, in Pennsylvania and New Jersey this is definitely not the case. The intestate laws only provide for distribution of all property to the surviving spouse if the decedent had no surviving descendants or parents. To be clear the rules of intestate distribution govern property an individual holds in such person’s name alone, and do not apply to jointly held property or accounts for which valid beneficiary designations are in place.

In Pennsylvania, if you die while married with no children but a living parent or parents, your surviving spouse is entitled to the first $30,000 of your probate estate, plus one-half of the remainder, and then your parents receive the other one-half. A similar rule applies if you die while married and all of your children are also children of your surviving spouse. However, if you have children from a prior relationship, the surviving spouse is only entitled to half of the probate estate and the remaining one-half will be divided among your children or their issue.

In New Jersey, a surviving spouse is entitled to the entire probate estate if the decedent is not survived by parents or children. Additionally, the surviving spouse is entitled to the entire probate estate if the children of the decedent are also the only children of the surviving spouse. If there are surviving parents of the decedent or children born outside of the marriage of the decedent and surviving spouse, the amount the surviving spouse is entitled to will depend on the size of the probate estate.

Apart from ensuring that your estate is distributed according to your wishes, a will is especially important if you have minor children. In a will, you can nominate a guardian for your children in the event there is no surviving parent of the children. You can also make sure your children do not receive a lump sum of cash upon turning 18 years old. A will with trust provisions included can provide for distributions to your children for their health, education and support, and gradually give them control over their inheritance upon attaining certain age thresholds that you select, not simply the age of majority as state law might provide. A will is also important for blended families and can balance providing for the surviving spouse for his or her lifetime and leaving the remainder to the children. Will provisions are also instrumental in structuring property for a disabled beneficiary so that the beneficiary is not disqualified from receiving governmental benefits.

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DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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