How is an estate divided when someone dies without a Will?

Dad died without a Will but with 2 living sons. He remarried. His spouse name is not on the house or the cars. I understand she gets the life insurance because her name was on it. Who gets the property? Just found out that she might have paid for the house and cars in full with the life insurance money he left her. Who gets the property?

Asked on August 31, 2011 Georgia

Answers:

M.T.G., Member, New York Bar / FreeAdvice Contributing Attorney

Answered 9 years ago | Contributor

I am so sorry for your loss.  You do indeed have a sticky situation here.  While I can give you some general information on how things work when someone dies with out a Will, the specifics as they relate to the facts with your family will matter in the resolution.  There are certain concerns here  - like was the property bought during the marriage to his present wife or was it his prior to marriage, etc., and the answer to these concerns will indeed impact on the matter.  So when someone dies with out a Will it is known as dying "intestate" and the intestacy laws in the state will apply.  Here is the law in your state:

"Probate Code 53-2-1.

b) When a decedent died without a will, the following rules shall determine such decedent´s heirs:

 (1) Upon the death of an individual who is survived by a spouse but not by any child or other descendant, the spouse is the sole heir. If the decedent is also survived by any child or other descendant, the spouse shall share equally with the children, with the descendants of any deceased child taking that child's share, per stirpes; provided, however, that the spouse's portion shall not be less than a one-third share; "

 

There is a right of election in every state that says that a Wife can elect against a husband's estate (and vice versa) if they are not left what the law considers "enough" upon one's death.  Seek some legal help here.  Good luck.


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