Dying Without a Will & the Invocation of Indiana’s Intestacy Laws

Discussing death, wills, trusts, and probate issues are some of the most difficult and awkward conversations we have with clients in our office. After all, who wants to discuss things that happen to us at the end of our lives? We are all going to live forever, right? Wrong, obviously (unless you are a vampire — and you might have other issues if that’s the case!).

As uncomfortable as it may be to think about, everyone dies — clearly, it’s a fact of life. And given every single person knows this fateful truth, common sense leads to reason that most everyone should plan for what happens to their stuff when they pass on from this life — to make it easy on those left behind. Shockingly, though, many people never take the time to address it — often times leaving their family members, who are all reeling from pain from your loss, to pick up the pieces and brave the probate waters without direction.

More often than not, it seems this happens because people feel they only need to draft a will as they near the end of their lives (often too late in fact), have accumulated a significant amount of assets, have had children, and/or have complex financial portfolios. However, the truth is everyone should have a will — no matter age, salary, family make-up, etc. You should do so not just for your peace of mind, but for your loved ones that may be left cleaning up the mess once you pass.

And though you may think that things will be distributed the way you would have wished, you may find that the laws regarding distribution of your estate without a will may be substantially different than what you would have written in a legal will.

Indiana’s status regarding distribution of an estate without a will is espoused in I.C. 29-1-2. The legal term of art for this mechanism is called “Intestate Succession,” or “Intestacy Laws.” Within that statute, the legislature tried to codify the “average person’s” intentions as a collective body. In layman’s terms, they tried to codify in statute what they believe the average person would want to happen to their things if they had drafted a will before they died.

Unfortunately, more often than not, Indiana’s Intestate Succession Statute may not be what a decedent would have wanted — nor is it necessarily what is best for the heirs themselves — but, that’s why you draft a will to avoid those problems.

Below is a chart explaining the most common survivorships with intestate succession (when someone dies without a will):

                Survivors Who Receives What
Spouse, one or more children ½ estate to spouse (this is the case even if a will exists and the decedent attempted to leave less to his surviving spouse)½ estate to child or children
Spouse, no children, parent(s) of decedent then living ¾ estate to spouse¼ estate to parent(s) of decedent
Spouse, no children, or parents All to spouse
Second or subsequent childless spouse, children of first marriage Spouse: ½ of personal property + ¼ fair market value of real estate½ personal property and title to real estate to child, children, or issue of deceased children
Children, no spouse, or parents All to children equally
No spouse or children Equal sharing parents and siblings, with parents getting at least ¼ each
No issue of deceased, no brothers, sisters, or parents Equal shares to surviving grandparents
No grandparents Equal sharing by brothers and sisters (uncles and aunts) of decedent’s parents or by issue of uncles and aunts by representation
None of the above State of Indiana gets everything

As anyone can see, things can get complicated — not only complicated, but down right confusing, right? Throw on top of that the nuances of inheritance tax, death benefits, and probate court, and you are left with something slightly more complicated than rocket science, but not as complex and neuro-brain surgery.

As such, some people look through the chart above and come to the stark realization that many people on that list are people you may not want to receive your assets upon your death. That is why it is crucial that you hire a good law firm with great estate lawyers to draft end of life planning to meet your needs and desires. A good estate lawyer can make the process painless and efficient. They can answer your tax questions, your investment questions, and can address the legal ramifications of the decisions you make. As you can see, without it, you are letting the state decide — and given the speed limit restricts on most roads, that’s scary.