When a person dies without a will, the common misconception is that the remaining spouse will automatically inherit their estate. However, when a person dies without a will, the state must be involved in the process of allocating assets. The guidelines by which this type of estate is handled are known as intestate laws.

Petition to Determine Heirs

If you want to claim the assets of someone who has passed without a will you will need to first file a petition with the court so that they can determine who the heirs are. If you are the legal spouse of the deceased, this process will go along smoothly. However, if you are a child or another relative, the court will review the information to decide if you have the legal right to file claim of the estate. Only if the court deems that you can will you be able to move forward with the intestate case.

Spouse/Children Split

Keep in mind that each state has intestate laws that determine how an estate can be split when there is a surviving spouse and child left behind. For example, in some states, if there is one spouse and one child left behind, the estate will be allocated 50/50. However, if there is a spouse and multiple children, the spouse might receive a 1/3 share and the children would need to split up the remaining 2/3 evenly. The spouse/children split is enacted even for children that were produced outside of the marriage of the living spouse.

Research Required

When a person dies with a will, it makes the process much easier. However, when there is not a will — the intestate process can belong. The court will require an extensive amount of research to first determine that the person claiming heir to the estate is a rightful heir, and to ensure that none of the assets that are in question are shared or have instruction to be passed on to a beneficiary. This process can take some time to complete, so it is important to have patience.

An Intestate Case 

If your spouse died without a will, an estate planning attorney can help you file an intestate case so that you can recover as many of their assets as possible. Additionally, since some assets can avoid this process, an attorney will sit down and review all the assets in question to help you determine how to move forward.

Do not think that simply because your loved one did not have a will, you are unable to claim their assets. There is a legal way to go about the process and an attorney can help.