Wills - the Basics
As a Delaware attorney who prepare Wills, I understand why some people put off making a Will. For some, the thought of dying is something they don’t want to deal with. For others, they think they have to organize or inventory everything they own, or that they’ll have to fill out a long and involved questionnaire. The process of creating a Will is usually very simple unless your estate is worth more than $3 million.
This is the first in a series of articles about Wills. Let’s start with the basics and discuss what happens if you don’t have a Will.
Contrary to popular belief, if you die without a Will, everything you own will not go to the State. Instead, the question of who gets what is determined by the intestacy laws passed by our General Assembly. It’s not that our State Government wants to be involved, but if you choose not to specify in a Will how your assets get distributed upon your death, then the law controls who your heirs are.
So who gets everything if you die without a Will? If you're survived by your spouse, here are the rules that apply (it’s actually a little more complicated than this, but these are the basics).
A. If you have no children or parents who are living at the time of your death, your entire estate goes to your spouse.
B. If you have no children but you’re survived by one or both of your parents, then your spouse gets (1) the first $50,000 of your personal assets, (2) one-half of the balance your personal assets, and (3) a life estate in any real estate that you did not own as husband and wife.
C. If you are survived by children who are also the children of your spouse, then your spouse gets (1) the first $50,000 of your personal assets, (2) one-half of the balance your personal assets, and (3) a life estate in any real estate that you did not own as husband and wife.
D. If you are survived by children but one or more of these children are not also your spouse’s children, then your spouse gets (1) one-half of your personal assets, and (2) a life estate in any real estate that you did not own as husband and wife.
The part of your estate that doesn’t go to your spouse under A, B, C, or D, (or your entire state if you’re not survived by a spouse), goes as follows:
1. to your children
2. If you are not survived by children, to your parents
3. If there are no surviving children or parents, to your brothers and sisters and if a brother or sister is deceased, his or her children
4. If there are no surviving children, parents or siblings, to your next of kin.
