question.jpgIn Trusts and Estates

How is an estate divided when the decedent’s parents and siblings are still alive?

Generally, when someone dies intestate (without leaving behind a legally valid will) and is survived by one or more of their parents or siblings, the inheritance scheme works as follows (this may differ in some states, so you should be careful to check your state’s probate code). Parents and siblings are only entitled to any portion of the deceased’s estate if there is no surviving spouse and no surviving children or descendent of those children. In this situation, if both parents are still alive, they will generally each get an equal share of the entire probate estate (that is, they will each take 50% of the property). This is true regardless of whether or not the deceased has any living siblings.

Where only one of the deceased’s parents is alive, that parent gets the entire estate if the deceased has no living siblings. However, where there is one living parent and one or more living siblings, the standard varies from state to state although the two most common outcomes are: (1) all of the estate goes to the surviving parent; or (2) the surviving parent gets 50% of the estate and the surviving siblings equally split the other 50% of the estate.

Finally, if there are no surviving parents but one or more surviving siblings (or descendents of those siblings, e.g., nieces or nephews), the estate will generally be split equally between the surviving siblings. If one or more of those siblings have died but have surviving children of their own, those children are entitled to a portion of the estate, but it becomes even more of a nightmare to figure out because you have to determine whether the applicable state law applies the right of representation distribution, the per capita with representation distribution or the per capita at each generation distribution.