Dying Without a Will- Intestate Succession

Although in most instances people prepare last wills and testaments prior to their passing, there are still many instances where a person does not have a last will and testament at the time of their passing.  The obvious question becomes how their assets/estate will be distributed to their potential heirs.  Fortunately, the NJ legislature has statutes which address this precise scenario. The intestate succession statutes are codified by N.J.S.3B:5-2 through N.J.S.3B:5-14.

In general, a person is deemed to have died without a will (intestate) if no will can be located, or there is a document which purports to be a will, however, there is no verification to establish the validity of the document.  The main dividing point in determining intestate succession concerns whether the decedent died while married or was not married at the time of his her/passing.  This blog shall only provide some general guidance as to these scenarios, as the statutes contain specific language which would require the consideration of many factors to determine who may be entitled to a share of a decedent’s estate.

One of the most common scenarios is when a decedent who is married passes away leaving a surviving spouse, and all of the children who survived the decedent are also children of the surviving spouse. The statute is very clear on this point that their surviving spouse would be entitled to the entirety of the decedent’s estate.  Another common scenario is where the decedent passes away leaving a surviving spouse, but the decedent’s surviving children are not the children of the surviving spouse.  In this instance, both the surviving spouse and the surviving children would be entitled to a portion of the decedent’s estate.  This calculation is provided by the statute with the surviving spouse receiving the majority share. Finally, another common scenario we will discuss is where the decedent passes away, however, one or more of the decedent’s parents survive the decedent.  The distribution of this intestate estate is likewise governed by statute and is typically divided between the surviving spouse, who will receive the majority of the estate, and the decedent’s parents.  Should there also be surviving children, the computation of these shares becomes complicated. Obviously, it is easy to think of many other familial scenarios, and the statute does cover essentially every possible scenario concerning the calculation of the shares, however, that determination becomes more complex depending upon the survivors and their relationship to the decedent.

Another important issue to consider when a person dies without a will is who is going to serve as the executor of the estate. Typically, the surviving spouse will serve as the executor of the decedent’s estate. In the absence of a surviving spouse, a surviving parent or a sibling could seek to serve as the executor of the estate. Should there be a dispute as to who should serve as the executor of the decedent’s estate, it could potentially result in a legal battle before a court with multiple parties seeking to be appointed as the executor. It is often a possibility in those scenarios that if the estate is substantial, the court will appoint an independent party to serve as executor. Hopefully, the potential heirs will be able to resolve their differences and agree upon an executor so that is not necessary, as litigation will eat into the assets of the estate.

Should you be faced with a scenario where you are a potential heir to an intestate estate, it is suggested that you consult with counsel. Unfortunately, in the absence of a last will and testament it is not uncommon that other individuals may attempt to take advantage of the situation concerning a decedent’s intestate estate. For these reasons, it is particularly important to consult with competent legal counsel to ensure that the laws of intestacy are closely adhered to. While the statute provides a clear directive, people may attempt to take advantage of the situation in order to personally enrich themselves. Retaining an attorney to protect your rights is the only thing which can prevent such conduct.