Legal Ease by
Shane Givens
Sept. 21, 2011
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Intestate and intestacy It is best to find out quickly if a deceased person, or “decedent”, has left a valid last will and testament. If not, the person is said to have died “intestate”. Intestate and intestacy are terms used to refer to the condition of having died without a will. Partial intestacy can occur when a person has a will that does not dispose of all of his or her property. This is the result of poor drafting and comes up most often in wills prepared by non-lawyers. When a person dies intestate, state laws of intestacy kick in to provide for distribution of the intestate decedent's assets. This scheme of distribution is referred to legally as “intestate succession”. These laws represent the Alabama Legislature's best guess as to what most people would want to happen to their assets. Under Alabama's laws of intestate succession, any part of an estate that is not effectively disposed of through a valid will is distributed to the decedent's heirs as follows. If the decedent is survived by a spouse, the following rules apply: _ If the decedent didn't leave parents or children, the spouse gets everything. _ If the decedent was survived by parents but not by children, the spouse gets $100,000 and half of the balance of the decedent's estate. The decedent's parents get the remaining half. _ If the decedent had children who are also children of the surviving spouse, the surviving spouse gets $50,000 and half the balance of the estate. The surviving children share the other half of the balance. _ If the decedent had living children that are not the children of the surviving spouse, the surviving spouse gets one half of the estate and the decedent's children get the rest. _ If the decedent is not survived by a spouse, the estate passes to decedent's heirs at law in the following order of priority: children and their descendants; parents; brothers and sisters, or, if all are deceased, nieces and nephews; grandparents, aunts, and uncles or, if all are deceased, to their descendants; and, if none of these exist, the state of Alabama. Within the various categories of heirs, each descendant of equal degree inherits equally and descendants of unequal degree inherit by representation (dividing the share that their parents would have taken). For example, if a person dies with three living children, each child would get one-third. If one of the three children had died but left descendants, those descendants would share in the deceased child's one-third. When several individuals are entitled to property under Alabama's intestate laws, they take title as tenants-in-common in proportion to their respective rights. For example, if six children are entitled to inherit the decedent's one piece of real estate, each child would have a one-sixth interest in the property. Note that this does not mean each child would own a one-sixth interest in the entire property. This column is intended for general information purposes only. The answers to most legal problems rely on specific facts of a particular situation; therefore, it is very important to see a lawyer when these situations arise. Please e-mail questions for future columns to givenslaw@tds.net. |