If You Die Without a Will
Ethan R. Okura
Hawai‘i Herald Columnist
When a person dies without a will, that person has died “intestate.” The “intestacy law” determines who inherits the property of someone who dies without a will. A person who died without a will is called an “intestate decedent.” Each state has its own intestacy law. Hawai‘i’s intestacy law has changed from time to time over the years. Our current intestacy law went into effect on Wednesday, Jan. 1, 1997, and applied only to persons who died on or after that date. If a person died without a will before Jan. 1, 1997, and a probate for that person’s estate is being done now, we need to research the intestacy laws, which were in effect at the time the person died.
The intestacy law applies only to property, which is not distributed by some other means. If the intestate decedent owned life insurance, an annuity, IRA, or other account with a named beneficiary, that asset will go to the named beneficiary. If the person owned an account or real estate with another person as tenants by the entirety or as joint tenants, that account or real estate will go to the other person. If the person died with assets in a trust, those assets will go to the beneficiaries named in the trust. The intestacy law applies only to assets that the person owned alone, or as a tenant in common, and which is not covered by a will or any other means of distribution mentioned above.
Here are the rules for an intestate decedent who was married at the time of death:
- If the person has no living descendant or parent, then everything goes to the surviving spouse.
- If all of the person’s living descendants are descendants of the surviving spouse, and if the surviving spouse has no other living descendant, then everything still goes to the surviving spouse.
- If the person has no living descendant but has a living parent, then the surviving spouse gets $200,000 plus three-fourths of the balance of the assets.
- If all of the person’s descendants are those of the surviving spouse, and if the surviving spouse has one or more other descendants as well, then the surviving spouse gets $150,000 plus half of the balance of the assets.
- If one or more of the descendants of the person are not descendants of the surviving spouse, then the surviving spouse gets $100,000 plus half of the balance of the assets.
These rules for a surviving spouse also apply to a “reciprocal beneficiary.” Reciprocal beneficiaries are usually same-sex partners who have registered with the state in order to enjoy certain benefits, which are otherwise reserved for married couples.
The share that does not go to a surviving spouse, or the entire estate, if there is no spouse, goes to the following individuals in this order:
- To the person’s descendants, by representation (this means to the children in equal shares, with the children of deceased children sharing equally the combined shares of the deceased children);
- If the person has no descendants, then to the parents equally or all to the surviving parent if one has died (if the intestate decedent was a minor, a parent cannot inherit if he or she deserted the child or failed to communicate with the child for a year when able to do so, or failed to provide care and support to the child for a year when able to do so);
- If the person has no surviving descendant or parent, then to the descendants of the person’s parents, by representation (this means to brothers and sisters of the intestate descendant, or the sibling’s children if the sibling isn’t living);
- If there is no surviving descendant, parent or descendant of parents, then half to the paternal grandparents, or if none, to their descendants, by representation; and half to the maternal grandparents, or if none, to their descendants, by representation. If either the paternal or maternal grandparents have died and have no living descendant, then it all goes to the other set of grandparents, or if they are deceased, to their descendants.
In addition to all that, if someone who is supposed to inherit dies within 120 hours after the person who died intestate, then they are treated as if they had died before the person. On the other hand, if a person who is supposed to inherit was conceived before the person died, but was actually born afterward, then they are treated as if they were alive at the time the person died.
Finally, if none of the above are living and there is no surviving spouse, then everything goes to the state of Hawai‘i. This order of distribution might not be what you want to happen when you pass away — particularly having everything go to the state. Many clients who do not have family prefer to leave assets to a favorite charity instead.
Sorry it’s so complicated, but that is the law!
© OKURA & ASSOCIATES, 2021
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Ethan R. Okura received his Doctor of Jurisprudence Degree from Columbia University in 2002. He specializes in Estate Planning to protect assets from nursing home costs, probate, estate taxes, and creditors. This column is for general information only and is not tax or legal advice. The facts of your case may change the advice given. Do not rely on the information in this column without consulting an estate-planning specialist.