Contrary to popular belief, if you die without a will, your assets do not go to the state. However the state will make a will for you. Whether the will that the state makes for you carries out your wishes is another issue entirely. When a person does not have a will they die “intestate.”
Having a will alone is not proper or complete estate planning.The estate in the context of a will is the total of the property subject to administration by the personal representative (executor or administrator) of the estate and does not include property passing to joint owners by right of survivorship or passing to beneficiaries of trusts, life insurance contracts, annuity contracts, retirement benefits, “in trust for” accounts, “pay on death” accounts, or “transfer on death” securities. The will controls assets that are in your name alone and not otherwise controlled by these other ways of owning property.
Further down there are two charts that attempt to summarize the Pennsylvania rules of intestate succession. The first chart shows the share of the surviving spouse (if any), and the second chart shows the shares of heirs other than the surviving spouse. The statutes and charts below use the word “issue,” which means children, grandchildren, and other descendants.
The following charts show how property not disposed of in a will or by other forms of ownership will be distributed under Pennsylvania law. It does not address all possible intestate situations.
Share of Surviving Spouse
|Issue (children, grandchildren, etc.), all of whom are issue of the spouse||First $30,000 of the estate and half of the balance|
|Issue, one or more of whom are not issue of the spouse||Half of the estate|
|No issue, but one or both parents||First $30,000 of the estate and half of the balance|
|No issue and no parents||Entire estate|
Shares of Other Heirs: Most Common
|Decedent is Survived by:||Shares of Heirs:|
|One or more children||Divided among children in equal shares, with the share of a deceased child distributed to the child’s issue (if any)|
|One or more grandchildren, but no children||Divided among grandchildren into equal shares, with the share of a deceased grandchild distributed to the grandchild’s issue (if any)|
|One or both parents, but no children or other issue||Half to each parent, or all to surviving parent|
|One or more brothers or sisters, but no issue or parents||Equal share to each sibling (no distinction between half siblings and whole siblings), with the share of a deceased sibling distributed to the issue (if any) of the deceased sibling|
|One or more nephews or nieces, but no issue, parents, or siblings||Equal shares to nephews or nieces, with share of deceased nephew or niece distributed to the issue (if any) of the deceased nephew or niece|
|One or more great-nephews or great-nieces (children of nephews or nieces), but no issue, parents, siblings, nephews, or nieces||Equal shares to great-nephews or great-nieces, with share of deceased great-nephew or great-niece distributed to the issue (if any) of the deceased great-nephew or great-niece|
|One or more grandparents, but no issue, parents, siblings, or issue of siblings||Half to the paternal grandparents or, if both have died, to their children or grandchildren, or if there are no children or grandchildren, to the maternal grandparents, and one half to the maternal grandparents or, if they have both died, to their children or grandchildren, or if there are no children or grandchildren, to the paternal grandparents|
|One or more uncles or aunts, but no issue, parents, siblings or issue of siblings, or grandparents||Equal shares among the uncles and aunts, with the share of a deceased uncle or aunt distributed to the issue (if any) of the deceased uncle or aunt|
|One or more first cousins (children of aunts or uncles), but no issue, parents, siblings, issue of siblings, grandparents, or uncles or aunts||Equal shares for first cousins, with no share for any cousin not surviving (meaning that first cousins once removed do not inherit)|
|One or more first cousins once removed (grandchildren of aunts or uncles), but no issue, parents, siblings, issue of siblings, grandparents, uncles or aunts, or first cousins||Equal shares for first cousins once removed, with no share for any cousin not surviving (meaning that first cousins twice removed do not inherit)|
|No issue, parents, issue of parents, grandparents, or children, grandchildren, or great-grandchildren of grandparents||Entire estate to the Commonwealth of Pennsylvania|
The distribution of a share to the descendants of a deceased heir is “per stirpes,” because the descendants of a deceased heir take the heir’s share by a right of representation. For example, if there is supposed to be a distribution to “A” and “B,” but B has died leaving two children, each of those children would receive one-fourth of the distribution (one half of B’s one-half share). If one of B’s children has also died, leaving one or more children, those children (B’s grandchildren) would receive the share of B’s deceased child. Under Pennsylvania law, the initial division is among the oldest living generation is in equal shares and based on the number of children.
What does all of this mean? It means you need a will that states how you want your probate assets distributed but you also want a comprehensive estate plan that addresses other types of non-probate property, special situations where a trust may be needed, disposition of business assets, possible cognitive incapacity, long-term care costs and other concerns that may be relevant to you.
And that’s where Slutsky Elder Law can help.