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Intestate Succession

Estate Planning Attorneys in Foley

If you pass away in Alabama without a will or any other estate planning instruments, then your estate will be subject to the intestate succession laws promulgated in Alabama Code, 1975 § 43-8-40 through § 43-8-58 (the Code). The rules of succession are a little cumbersome and may be difficult to understand, but hopefully, this explanation will be helpful in simplifying the rules of intestate succession.

By the time you finish reading this section, the reasons for hiring an estate planning attorney in Foley to develop an estate plan should be abundantly clear even if the intestate succession rules remain murky. You should understand that the state applies the same intestate rules to every intestate estate, even though the assets, heirs, and the desires of the decedent are bound to vary from estate to estate. The rules of intestate succession are completely avoidable and you should contact a Daphne estate planning lawyer to ensure that your estate is distributed in a way that accords with your wishes and desires.

To schedule a free consultation, please either call us today at (251) 444-7000 or contact us online.

The Surviving Spouse’s Share

The first issue the Code deals with is the share due to the surviving spouse. If there is (1) a surviving spouse, (2) no other issues (children or descendants of children) of the decedent, and (3) no surviving parents of the decedent, then the surviving spouse is entitled to all of the decedent’s estate.

Surviving Spouse & Surviving Parent

If there are no issues of the decedent but there is a surviving parent or parents, then the surviving spouse is entitled to the first $100,000.00 plus one-half of the balance of the decedent’s estate.

Surviving Spouse & Issue

If there are issues of the decedent and all of the issues are also issues of the surviving spouse, then the surviving spouse is entitled to the first $50,000.00 plus one-half of the balance of the decedent’s estate.

If there are any surviving issues that are not also issues of the surviving spouse, then the surviving spouse is entitled to one-half of the balance of the decedent’s estate.

The Shares Due to Remaining Heirs

The balance of the estate not due to the surviving spouse as articulated in the section above or in the case that there is no surviving spouse, shall be divided as described below.

The issues of the decedent shall take equally if they are of the same degree of kinship. If the issues are of unequal degrees of kinship then they shall take by representation.

For example: X dies and at the time of his death, he has two living children, A and B, and one deceased child, C. C has two living children at the time of X’s death, R and S. The estate would first be divided among A, B, and C, each taking 1/3. Since C is not alive to take his share, his children would divide his share such that R and S each took 1/2 of C’s 1/3 or 1/6 of X’s remaining estate.

Share of the Parent

If there is a surviving spouse and no surviving issues, but the parents of the deceased are still alive, then the parents will be entitled to the balance of the estate after the surviving spouse’s share is paid. Or, if there is no surviving spouse or surviving issue, but the parents of the deceased are still alive, then the parents will be entitled to the entire estate in equal portions.

No Surviving Spouse, No Surviving Issue, No Surviving Parent

The scenario gets quite complicated in the uncommon situation where there is no surviving spouse, no surviving issue, and no surviving parents. In this case, the estate passes to the issue of the parents by representation.

In the uncommon event that there is no surviving spouse, no surviving issue, no surviving parents, and no surviving issue of the parents, you guessed it: The estate passes to the surviving grandparents if there are any. The maternal grandparents or grandparent and the paternal grandparents or grandparent will divide the estate equally. In the event that one of or both of the grandparents is also not living, then the estate passes to the issue of the grandparent in equal shares to those issue of equal degree of kinship and by representation to those issue in unequal degrees of kinship.

The above provision is quite complicated and unlikely to occur and it would require some creative thought to even come up with a clairvoyant example of how such a scenario would play out.

Contact Caldwell Wenzel & Asthana

If you are unable to make heads or tails of this section and find it difficult to follow, the take away should be that it is important to avoid the Alabama intestate succession statute and a basic will or estate plan involving a living trust allows you to decide exactly how you would like your estate distributed. The intestate succession statute is the state’s attempt at a logical way to distribute estates where the decedent did not have an estate plan in place, but the fact of the matter is that the state’s idea of fair distribution is unlikely to coincide with your wishes and desires for your estate after your death.

Understanding the basics of the intestate succession statute is easier if you refer to our flowchart link. If you have questions about this statute or how it might apply to an estate in which you have an interest or if you are interested in developing an estate plan to avoid these cumbersome rules, contact our estate planning lawyers in Daphne to set up a consultation. We proudly help people across Alabama, including Fairhope, Foley, Spanish Fort, and Daphne.

Contact us today at (251) 444-7000 for your free case evaluation.

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