Why Avoid Intestate Succession?

When a person dies and leaves no will, they have died “intestate,” i.e., without a last will and testament. In the absence of a will to direct the distribution of any assets, state law determines who inherits through intestate succession. Furthermore, if there are assets not accounted for in a decedent’s will, the laws of intestacy apply to those assets, as well.

If you are putting together your last will and testament, consider contacting the Fargo law firm of O’Keeffe O’Brien Lyson Foss.

Basics of Intestate Successiongraveyard-1417871_1920 (1)

Chapter 30.1-04 of the North Dakota Century Code describes how assets are distributed through intestate succession. The decedent’s surviving spouse inherits the entire estate if the decedent has no surviving children or parents. If the decedent’s surviving children are also the surviving spouse’s children, the spouse inherits the entire estate, as well. Distribution gets a little more complex if the decedent has children that are unrelated to the surviving spouse, or if the spouse has children unrelated to the decedent.

If the decedent has no surviving spouse, the estate passes to the decedent’s children. If the decedent has no surviving spouse or children, the estate passes to the decedent’s parents. In the absence of surviving spouses, children, or parents, then further concessions for distribution are made for siblings, grandparents, descendants of grandparents, and pre-deceased spouses—and descendants thereof. In the rare case that a decedent has no valid heirs, then the intestate property passes to the state.

When Might I Want to Avoid Intestate Succession?

If you have relationships that are not officially recognized by the law, then intestate succession will not consider those individuals related to you for the purposes of distributing your property. For example, if you are in a romantic relationship but are not married, or if you have foster or step-children, none of those individuals stand to inherit if you die intestate. Similarly, if you have property you want to pass on to a friend, or if you wish to make a donation to charity, you will need to make the gift during your lifetime, or through a will or trust.

Your family’s unique circumstances can benefit from a tailored estate plan, rather than the “one size fits all” distribution through intestate succession. Perhaps your family members have differing needs. You may wish to allocate a larger portion of your estate to a chronically ill family member who needs the additional support. Or you may have a child who is wealthy enough that he or she does not want an equal distribution of your estate. Maybe you have family members that are estranged, and you would rather make sure that your assets remain with the family close to you. All of these situations would be ill-served through generic intestate succession, and would be best handled through an estate plan.

If you have property—especially personal property such as family heirlooms—with sentimental significance, you are better off with a will or trust to distribute those assets to those who will best appreciate them.

If your family situation demands a different distribution of assets upon your passing, speak to an estate planning attorney at O’Keeffe O’Brien Lyson Foss or call 701-235-8000 or 877-235-8002. We can help you craft a will or trust tailored to your specific needs and desires that will best protect your assets and your family.

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