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What Happens to My Assets if I Die Without a Will?

According to a 2020 Gallup poll, only forty-six percent (46%) of U.S. adults have a Last Will and Testament, including only fifty-three percent (53%) for Americans ages 50-64.  Based on approximations from publicly available population and mortality data, about 2 and 1 residents in Prince George’s and Anne Arundel Counties, respectively, ages 55-64 died without a will, or “intestate,” every day in 2020.

That is why it is not surprising that estate planning attorneys are often asked: “What happens to my assets if I die without a will?”  The answer lies in the statutory laws of the decedent’s home state and the factors can include the official title of the assets and the decedent’s family situation.  Every state has intestacy laws which can vary among the states.

For decedents who were domiciled in Maryland, the pertinent part of the intestacy laws is located in Sections 3-101 through 3-105 of the Estates and Trusts Article.  These laws apply only to assets that are in the decedent’s individual name (for example, when there is no joint owner) and there is no designated beneficiary, and only after specified taxes, debts and other legal obligations are paid (the “net estate”).  In these provisions of the Maryland Code, the determination of the surviving spouse’s share of the net estate is the starting point. 

1. Section 3-102 provides for the share of a surviving spouse under different circumstances:

  • The surviving spouse receives one-half (1/2) of the net estate if there is a surviving minor child.
  • If there is no minor child but there are surviving issue, the surviving spouse receives the first $40,000 plus one-half (1/2) of the net estate.  Maryland law defines “issue” as every living lineal descendant, which means a decedent’s children, or the grandchildren if a child predeceases the decedent.  
  •  If there is no surviving issue but a surviving parent and the decedent had been married to the surviving spouse for less than five (5) years, the surviving spouse receives the first $40,000 plus one-half (1/2) of the net estate.  
  •  If there is no surviving issue but a surviving parent and the decedent had been married to the surviving spouse for at least five (5) years, the surviving spouse receives the entire net estate. 
  •    The surviving spouse receives the entire net estate if there is no surviving issue or parent.

2. The next step is to determine who receives the remaining assets after the surviving spouse receives his or her share.  Section 3-103 provides that the surviving issue share the remaining net estate equally, by representation.  Maryland law defines “by representation” to mean that the children of a predeceased child receive the child’s share equally.  This is also known as “per stirpes.”

3. If there is no surviving spouse, but the decedent has surviving issue, the issue receive the entire net estate by representation

4. However, if there is no surviving spouse or surviving issue, Section 3-104 provides for the distribution of the net estate to family members farther up and out on the family tree, and then to stepchildren.  For example, the net estate is distributed equally to the decedent’s surviving parents, or to the survivor if there is only one parent, or if neither parent survives, to the parents’ issue, by representation.  To illustrate, if neither parent survived, the decedent’s brothers and sisters would share the net estate equally, by representation.  If the decedent had no parents and the parents had no issue, the decedent’s grandparents, their descendants, the decedent’s great-grandparents, and their descendants, in that order, receive the net estate.  If the decedent has no heirs by this point in the order, the net estate is distributed equally to the decedent’s stepchildren, by representation.  A stepchild is the decedent’s spouse’s child from a previous marriage.

5. Finally, Section 3-105 provides for the takers of last resort if the decedent had no heirs.  If the decedent was receiving long-term care benefits under the Maryland Medical Assistance Program, the net estate is distributed to the Maryland Department of Health.  Otherwise, the Board of Education in the county in which the decedent lived at the time of death receives the net estate.

Examples of the variation in state intestacy laws include Washington, DC allowing a qualified surviving domestic partner to inherit just as the surviving spouse would, and the taker of last resort for Washington, DC residents being the Escheatment Fund which provides emergency assistance cash grants for the city’s homeless population.

Remarkably, forty percent (40%) of respondents in Caring.com’s 2022 Wills Survey did not have a will because they have not gotten around to it, and thirty-three percent (33%) felt they did not have enough assets to leave to anyone.  Writing a will is important regardless of net worth as a validly executed will overrides default state beneficiary provisions and can create peace of mind.   It is not a complicated or costly process.

Other common estate planning documents include a financial power of attorney form and an advance medical directive, as well as a revocable living trust.  Contact the experienced estates and trusts attorneys at McNamee Hosea, P.A. at (410) 266-9909 for a complimentary consultation.

CAUTION: THIS ARTICLE IS NOT LEGAL ADVICE.  DO NOT RELY ON THE INFORMATION IN THIS ARTICLE AS LEGAL ADVICE.  CONTACT A QUALIFIED ESTATE PLANNING ATTORNEY FOR QUESTIONS ABOUT YOUR SPECIFIC SITUATION.

Citations

[1] https://news.gallup.com/poll/3...

[2] https://www.census.gov/quickfa...

[3] https://www.census.gov/data/ta...

[4] https://www.cdc.gov/nchs/produ...

[5] D.C. Code §§ 19-302 and -701

[6] https://www.caring.com/caregiv...