LawRefs Customized Legal Information
Attorney Renee C. Walsh

What happens to my estate if I die without a will?

This is a common question. If you die without a will, your estate will be probated according to your state’s laws of intestate succession. In Michigan, these laws are codified atMCL 700.2101 et seq. Under these laws, you are called the “decedent”.

MCL 700.2101 provides that any part of a decedent’s estate not effectively disposed of by will passes by intestate succession to the decedent’s heirs as prescribed in this act, except as modified by the decedent’s will.

If you have a spouse, MCL 700.2102 provides for their share, which is 1 of the following:

(a) The entire intestate estate if you have no descendant or surviving parent.

(b) The first $150,000.00, plus 1/2 of any balance of the intestate estate, if your surviving descendants are also descendants of the surviving spouse and there is no other descendant of the surviving spouse who survives you.

(c) The first $150,000.00, plus 3/4 of any balance of the intestate estate, if you have no surviving descendant but you do have a surviving parent.

(d) The first $150,000.00, plus 1/2 of any balance of the intestate estate, if all of your surviving descendants are also descendants of your surviving spouse and your surviving spouse has 1 or more surviving descendants who are not your descendants.

(e) The first $150,000.00, plus 1/2 of any balance of the intestate estate, if 1 or more, but not all, of your surviving descendants are not descendants of your surviving spouse.

(f) The first $100,000.00, plus 1/2 of any balance of the intestate estate, if none of your surviving descendants are descendants of your surviving spouse.

(2) Each dollar amount listed in subsection (1) shall be adjusted as provided in section 1210.

Rather than take your property pursuant to the intestate share described above and provided for in MCL 700.2102, your surviving spouse could take their dower rights pursuant to MCL 558.1 to 558.29. Your spouse will also be entitled to a homestead allowance provided for in MCL 700.2402, of $15,000.00, adjusted as provided in section 1210. If you have no surviving spouse, your minor children and dependent children are entitled to a homestead allowance equal to $15,000.00, adjusted as provided in section 1210. This allowance is exempt from and has priority over all claims against the estate, except administration costs and expenses and reasonable funeral and burial expenses. A homestead allowance is in addition to any share passing to the surviving spouse or minor or dependent child by the will of the decedent, unless otherwise provided, by intestate succession, or by elective share.

Your surviving spouse and minor children for whom you were obligated to support are also entitled to a “reasonable” family allowance as provided for in MCL 700.2403. The family allowance is exempt from and has priority over all claims except administration costs and expenses, reasonable funeral and burial expenses, and the homestead allowance. The family allowance is not chargeable against a benefit or share passing to the surviving spouse or children by the will of the decedent, unless otherwise provided, by intestate succession, or by way of elective share. The death of an individual entitled to family allowance terminates the right to allowances not yet paid.

Finally, your surviving spouse is also entitled to certain property. Under MCL 700.2404, they are entitled to household furniture, automobiles, furnishings, appliances, and personal effects from the estate up to a value not to exceed $10,000.00 more than the amount of any security interests to which the property is subject. If there is no surviving spouse, your children are entitled jointly to the same value.

The rights of heirs other than the surviving spouse are specifically provided for in MCL 700.2103. Any part of the intestate estate that does not pass to the decedent’s surviving spouse under section 2102, or the entire intestate estate if there is no surviving spouse, passes in the following order to the following individuals who survive the decedent:

(a) The decedent’s descendants by “representation” (defined herein below).

(b) If there is no surviving descendant, the decedent’s parents equally if both survive or to the surviving parent.

(c) If there is no surviving descendant or parent, the descendants of the decedent’s parents or of either of them by representation.

(d) If there is no surviving descendant, parent, or descendant of a parent, but the decedent is survived by 1 or more grandparents or descendants of grandparents, 1/2 of the estate passes to the decedent’s paternal grandparents equally if both survive, or to the surviving paternal grandparent, or to the descendants of the decedent’s paternal grandparents or either of them if both are deceased, the descendants taking by representation; and the other 1/2 passes to the decedent’s maternal relatives in the same manner. If there is no surviving grandparent or descendant of a grandparent on either the paternal or the maternal side, the entire estate passes to the decedent’s relatives on the other side in the same manner as the 1/2.

The term “representation” means that the estate that would pass is divided into as many equal shares as the total of the surviving descendants in the generation nearest to the decedent that contains 1 or more surviving descendants and the deceased descendants in the same generation who left surviving descendants, if any. Each surviving descendant in the nearest generation is allocated 1 share. The remaining shares, if any, are combined and then divided in the same manner among the surviving descendants of the deceased descendants as if the surviving descendants who were allocated a share and their surviving descendants had predeceased the decedent. If for example you die and have one surviving adult child and one deceased adult child who had a child, then your estate would be divided between the surviving adult child and the grandchild. If you have no children, but you have parents, then your estate will pass to your parents or, if they are deceased, then to their descendants who could be your siblings.

If you have no surviving spouse or other heir, then the State of Michigan will get your estate according to MCL 700.2105.

So, even if you die without a written will, the State will write one for you according to its laws of intestate succession.

Discussion:

  1. My husband died with out a will. We had a joint checking account and after paying funeral costs, about $10,000 remains. Are his children able to get any of this money?

    • Dear Vicki M.:

      Typically, joint checking accounts are only accessible by the joint holders. Joint ownership provides the opportunity for assets to pass outside of probate to the other joint owner.

  2. Anonymous says:

    Dear Janet:

    It is difficult to interfere with your father’s decisions absent some strong proof that he is under duress, abused or neglected. Consider contacting the Department of Human Services to make a complaint that your father needs protection from his wife. If you put the complaint in writing, this will lay a foundation for a Will Contest in the event of his death. Legally, you might also consider contacting a probate attorney to advise you as to the merit of a petition for a conservator and/or guardian.

  3. My Father married a much younger woman- after my Mom Died. My Father and Mom were married 44 years.
    Together they had 5 girls and 1 boy. The woman that my Dad married has been married before and has one daughter. She has managed to run all of my Dad’s assets to the ground except for the home and has all of Dad’s stuff in storage buildings. We as a family have always gone out of our way for Dad – even though his wife has been so disrespectful- tries to keep us from seeing Dad and the most evil person I have ever met. She had told us we would never see anything of my Dad’s because she knew her rights. My Dad on the other hand made the will out to be given to his estate before he met this woman. They agreed to prenupital agreements- but she managed to get him to change the will- apparently in 1996- here it is 2009 and we were never aware of this. So, if my Dad did not have some dementia- I am sure he would want us to be a part of His Life- not to mention- that this woman ran my Husband out of my Dad’s business after 20 years of working there- due to her controlling personality- knowing my Dad has always been vunearable. So do we have any rights at all- if anything happens to my Dad? Pleaase Advise!

  4. Dear Polly Villa:

    It is unlikely that your stepmother would prevail in an argument that the restaurant was entirely hers and not your fathers and therefore she should receive the entire business.

    If your stepmother felt that she was entitled to half of the value of the restaurant before your father died, then upon his death, she could argue that your father only had his half to pass upon his death. If this argument prevailed, she would likely share in the half that he had to give.

  5. My father owns a family restaurant that he acquired from his father before he married my stepmother. He has a will that gives all of his children and his wife equal parts to the "corporation". Could my stepmom fight this and say it is community property and she be left with the entire buisness when he passes?

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