Dying without a Will? Well, unfortunately, that ends up being messier than a Kardashian family group chat. When someone dies without a Last Will and Testament or a Living Trust, they are said to have died intestate, and the State, not your family, decides who gets what. In other words, the State follows intestate succession laws which are a rigid biological (and martial) hierarchy of who inherits your assets.
Who Inherits?
First public policy priorities a spouse and children first when you do not have a Last Will & Testament or other estate planning. However, if you are married when you die, your spouse might not automatically get everything. Your assets will be divided based upon whether or not you have surviving children, and or parents who survive your death.
In blended families – things get more complex. Are there stepchildren, adopted children, and/or biological children from a past relationship? The law treats these relations differently, and the end result may not be what you think should happen.
Here is an example of a general order of who gets what:
- Spouse and Kids: The spouse usually gets the first large piece of the estate, and the kids divide what is left.
- No Spouse? The children take all.
- No Spouse or Kids? The parents inherit equally.
- No parents either? The siblings, then nieces and nephews, then grandparents inherit.
- If no relatives survive within five degrees of kinship, then the estate escheats --- meaning your hard-earned money goes to the State.
What Are Degrees of Kinship?
You can think of degrees of kinship like layers of closeness in your family tree. The closer someone is to you are blood or legal relationship --- like a spouse, child, or sibling --- the lower the degree of kinship they fall under. The concept of kinship has been around for centuries and is believed to have originated from ancient Roman law. This idea still influences our modern inheritance systems. The strange part of that despite how modern our families have become --- think stepchildren, long-term partners, and blended families – intestate succession law still follows an old-school moder that does not always reflect today’s reality of what people consider to be their family.
Let’s explain it Kardashian-style!
Imagine Kim Kardashian passes away without a Will or a Trust. (Tragic for sure, but let’s just pretend for a quick minute.) In this dark plot twist, was a dramatic poisoning at a Kardashian family reunion, and everyone close to Kim — from her children to her mom Kris, her sisters Khloé and Kourtney, even her first cousins — all also tragically passed away in this scenario.
What would happen? A state court would start analyzing Kim’s family tree to confirm her next closest living relatives.
Here is how kinship degrees would break down:
1st degree – children or parents (e.g., North, Saint, Chicago, Psalm and/or Kris)
2nd degree – biological siblings or grandparents (Khloé, Kourtney, Rob)
Note: but not stepsiblings Kendall and Kylie, or Burt, Brandon, Brody or Casey
3rd degree – aunts/uncles, nieces/nephews
4th degree – first cousins
5th degree – first cousins once removed, great-great-grandparents
6th degree – third cousins, great-great-aunts/uncles
Now imagine there is a “Brittany Kardashian,” who claims she is Kim’s third cousin. In fact, Brittany tells everyone that they hung out after Kim walked in the 2B Free Spring 2008 Collection Fashion Show. After the devasting death of everyone at the Kardashian family reunion, which coincidentally Brittany just could make that weekend, she decides to show up in the county probate court with a “Team Kim Forever” hoodie, a box of cookies for the probate office staff, and waves her birth certificate to everyone to prove that she's Kim’s only surviving family member.
Unfortunately for Brittany, North Carolina law says: “Not going to happen.” In this case, she’s a 6th-degree relative, and that’s one degree too many. Under State law, you need to be within five degrees of kinship to have any right to inherit when there no Will.
What Happens to Kim’s Estate?
If no one within those five degrees of kinship is alive, her Estate escheats to the state. That means all of Kim’s millions (and her perfume empire, Skims stock, etc.) could end up in the State’s bank account — not because the government wants it, but because the law of intestacy says that is where it must go when there is no estate plan.
Think of it like this: if you’ve ever heard of the phenomenon called “Six Degrees of Kevin Bacon”? This is the game from the 90s where people believed that any actor in Hollywood could be connected to Kevin Bacon through their movie roles in six steps or fewer because of the actor’s diverse films he was casted in at that point in his career Well, similarly, if you’re more than five degrees from the person who died, the intestate law will not recognize you as a rightful heir.
Bottom Line? If you care who gets your stuff, it is probably time to consider making a Last Will or Testament or creating a Trust.
The reason? If you do not name who you want to inherit your assets, the State will follow a strict inflexible formula, — and no matter how close you felt to someone, how long you lived together, or how many birthday parties you attended, they are not considered family based upon Estates & Trusts law. Long-term partners, chosen family, or that cousin you facetime every day probably will not inherit anything from your estate unless you legally name them in a Will or a Trust.
The moral of this make-believe Kardashian example: If you are hoping to inherit from your fabulously wealthy reality-star cousin (or anyone else, really), make sure you are either within five degrees of kinship — or that they wrote you into their Will or Trust.
You wouldn’t let just anyone design your daughter’s homecoming dance look … so why let the State design your estate plan?
It has been well reported that Kim plans every detail --- from her outfits to her empire. Kim clearly knows that failing to plan, is planning to fail. The same is true for estate planning. Why wait to plan? How do you want to be remembered? And dying without a Will? That is probably not the messy legacy you want for your loved ones.
If you are in need of assistance, the attorneys at Collins Family & Elder Law Group can help.
