Estate Administration Tales – Part 2

In my blog post last week, I explained that we often get calls from family members of a loved one after they pass away in which the family explains what the decedent (person who died) wanted with respect to the distribution of their estate.  Without a written document, however, the law sometimes provides for a very different outcome.  Let me explain by giving you examples.

Daughter called us because her dad died.  He left a surviving spouse and 4 children but not a will.  Additionally, his surviving spouse was from a second marriage.  2 of his children he had with his second wife but 2 others he had as a result of his first marriage.  Dad left a house, titled solely in his name, but which the surviving spouse still makes her home.  He also left several bank accounts.  Some were co-owned jointly with his wife and others were held in his name alone with no payable on death designations.

The family assumed that everything would pass to the surviving spouse because that’s what Dad had always said should happen.  But, again, he did not put his wishes in a written last will and testament.  I explained that New Jersey law says otherwise.  

Under the intestacy laws – which provide for what happens when there is no will – had all of Dad’s children also been Mom’s children and neither of them had any other children from other relationships, all of his assets would have passed to his surviving spouse.  In this case, however, some of the assets get distributed amongst all the children because some of them have a different mother.

The surviving spouse is entitled to the first 25% but not less than $50,000 or more than the $200,000 plus 1/2 of the rest.  The children then split the other remaining 1/2.  This calculation applies to anything that is considered a probate asset – what would have been passed by way of a will if Dad had signed one.  As I mentioned above, there were some assets held jointly with the wife so by law she keeps those and they don’t factor into this equation.

The biggest asset, however, is the house and it became clear that the surviving spouse would not receive 100% ownership under the intestacy laws.  So, what happens in that case?  I’ll get to that question next week.