Sunday, November 1, 2015

So you died without a will, how much does your spouse get?

In Michigan, someone who dies without a will dies "intestate."  Without a will, the heirs are determined through the rules of "intestate succession." If the decedent died intestate, these rules determine who will ultimately receive the decedent’s intestate "probate" estate*.  There are several general rules of intestate succession, and I've highlighted just the couple that are probably  relevant to most of you.  First, there are statutory allowances for spouse and dependents that are taken off the top.

 Then, apply the following:

A spouse is given priority over the decedent’s other living relatives.  If there are no surviving descendants or parents of the decedent, the decedent’s spouse is the sole heir, even though the decedent may have left surviving brothers and sisters or other relatives.

A surviving spouse receives the following:

If a decedent leaves no descendants (children) but leaves a surviving parent, the surviving spouse is only entitled to the first $221,000 of the decedent’s intestate estate.  The surviving spouse then receives only three-quarters of the balance and the surviving parent(s) receives one-quarter of the balance.

If all of the decedent’s descendants are also the surviving spouse’s descendants (children), then the surviving spouse can receive the first $221,000 of the decedent’s intestate estate.  The surviving spouse then receives 1/2 of the remainder and shares the balance equally with the decedent’s descendants (children).  What this means in clear language is that if Dad dies, Mom inherits the first $221,000 plus 1/2 of the residue and has to give the rest to her kids.

Sound complicated?  It is.  Having a will can "override" the defaults of the law mentioned above.  If you want your surviving spouse to get everything -- You can do that, in a will (or trust).

* Probate Estate:  Those assets that do not pass by operation of law to someone designated to receive them (i.e. life insurance policy) and are titled in only the name of the decedent, thereby requiring a probate estate to be opened for the decedent.

 Do YOU need a will?  Call me.

Attorney Clay Wittman,
Probate and Estate Planning