The following is general legal information and not intended as legal advice.  Always seek professional legal counsel. All individual circumstances are different and it is not possible to discuss all the exceptions and distinctions for specific situations.

Why should you have a will?

 If you don’t, the state statutes determine to whom your property goes.

 

Please note the property discussed below includes property that is in your name alone at time of death (this property is called probate property). We will discuss non-probate property: life insurance contracts, annuities, retirement plans, and joint deeds etc. in another newsletter.

 

Please note that for example if you are an Indiana resident under current law:

Surviving Spouse:

  1. 1.If you have a surviving spouse with children or grandchildren, your spouse will receive half of all your estate.
  2. 2.If you have no children, but are survived by a parent then the spouse receives ¾ of your estate.
  3. 3.If no surviving children or parent then all of your estate to your spouse.
  4. 4.If your spouse is a second or subsequent spouse who had no children by the decedent and the decedent left surviving a child or children or the descendants of a child or children by a previous spouse:
    1. a. The second or previous spouse shall take only an amount equal to 25% of the fair market value of real property of the deceased spouse minus the value of liens and encumbrances on the real property.
    2. b.The ownership of real property will vest at once in the decedent’s surviving child or children, or the descendants of the decedent’s child or children who may be dead.
    3. c.Personal property (this includes tangible and intangible property) is distributed the same as a surviving spouse under number 1, 2 and 3 above.
      1. i.Tangible property would include, but not be limited to, furniture, appliances, automobiles, etc.
      2. ii.Intangible property would include stocks, bonds, bank accounts, brokerage accounts, etc.

The share of the estate not distributable to the surviving spouse:

  1. 1.To the children of the decedent, if alive at the decedent’s death and if not, then their share to their children (the decedent’s grandchildren).
  2. 2.If there is a surviving spouse but no surviving children of the decedent, then to the surviving parents of the intestate.
  3. 3.If there is no surviving spouse or child of the decedent then to the surviving parents, brothers and sisters, and the children of deceased brothers and sisters of the decedent. So Parents get the same share as brothers and sisters. However the parents shall not receive less than ¼ of the decedent’s estate.
  4. 4.If no surviving parent or brother or sister of the decedent then to children of brothers and sisters.
  5. 5.If none of the above then to grandparents.
  6. 6.If none of the above then to the sum of:
    1. a.to brothers and sisters of decedent’s parents plus
    2. b.number of deceased brothers and sisters of the decedent’s parents leaving children surviving both them and the decedent.
    3. c.And one share shall pass to each of the brothers and sisters of the decedent’s parents or their children per stirpes.
    4. 7.If there is not person mentioned above then to the State of Indiana.

Interests in real estate as husband and wife go as tenants by the entireties (this has special meaning in Indiana and will be discussed later).

Interests in personal property shall be owned as tenants in common (again we will discuss this later).

There are some exceptions to the above like when a parent is convicted of causing the death of a child, but you should have an idea now that it is much easier to write a will to formalize your wishes. We will also discuss later other options spouses and others have when an estate is settled.

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