Who gets someone’s property when there is no will?
I have had several clients approach me about a loved one who has died without a will ….. clients with questions about who gets what property, how real estate is handled, and whether probate will be required to distribute the decedent’s estate.
Unfortunately, it is quite common in Tennessee for an individual to die without a will or any type of estate plan in place. This is called “intestacy” (i.e. “no will”) and the deceased individual’s property is called an “intestate estate.”
If an individual is married at his/her death, the surviving spouse and any children (by birth or through adoption) will inherit the intestate estate. If there are no children (either adults or minors), the surviving spouse takes the entire estate. If there are children, the following rules apply:
- If one child only, the spouse and child share equally (50/50);
- If two children, the spouse gets 1/3 of the estate, and the children share the remaining 2/3 (or each child also gets 1/3); and
- If three or more children, the spouse gets 1/3 of the estate, and all children share (in equal parts) the remaining 2/3. (Tenn. Code Ann. §31-2-104)
If the decedent had no spouse at death (i.e. was a widow, was divorced, or had never married), then the decedent’s children – or their children – will inherit in equal shares. If the decedent had no children or grandchildren, the Tennessee intestate statue has a complex scheme to determine what order remaining family members will inherit the intestate estate. These possible heirs include:
- Parents
- Brothers / Sisters
- Uncles / Aunts
- Cousins
Will the State take the property if no heirs are found?
The answer is yes, however this rarely happens, as the laws are designed to give the intestate decedent’s property to anyone even remotely related to the individual.
What about second marriages and step-children?
This is why estate planning is so important. I have handled cases in which a long-term second marriage has ended with the death of a spouse, who had no will. After the funeral is complete, conflicts erupt between the surviving spouse and the adult children of the decedent from his/her first marriage. This is not an uncommon situation, and emphasizes why a little advanced planning, and at minimum having a will, is so vital for every family.
If you need advice in an intestate situation in Tennessee, call me to discuss it (865-546-9321). But more importantly, call about setting up your estate plan now, so that this situation will never apply to or afflict you and your family during their time of loss.
Rich practices in numerous areas of civil litigation and business law, including commercial litigation, insurance, bankruptcy, employment law, real estate litigation (title insurance defense), landlord / tenant law, collections law, personal injury, workers’ compensation, veterans’ disability, products liability, probate and estate litigation. He advises and represents both individuals and businesses, small and large. Rich’s priority in serving his clients is to provide timely, effective and efficient legal representation and advice, while advocating their interests in the state and federal courts of Tennessee. He cares about people and their individual situations. Rich focuses on being the best advocate for his clients.
