Page 64 - Senior Link Magazine Summer 2021- Online Magazine

SENIOR RESOURCES

One BIG Reason Will by Lee Franks

for a

lready, several times this year, I have helped people similarly, each unique piece of separate personal property
administer the estates of a loved one who died is owned, one third and two thirds. Money and other
Aintestate, in other words, without making a will. fungible goods can be divided up easily enough, but it is
Usually, the absence of a will causes little more than an difficult to reconcile each heir’s share of an item of property
inconvenience, which means that it makes the process more no one wants to sell, such as a piece of jewelry or furniture,
expensive. But in some cases, the process can become far especially if the item is a family heirloom. And all of this is
more difficult and painful. I have had two such cases since to say nothing of the claim the decedent’s estate may have
just January. on separate property owned by the surviving spouse.

When a person dies with a valid will, the will dictates who The difficult and painful part comes from the need for
gets what out of the person’s estate, but when a person all the heirs to agree to some kind of settlement based on
dies without a will, all of the person’s property passes to mutual respect and compromise. The kind of negotiations
his or her heirs according to state law. If the person, also and concessions needed to resolve intestate distributions
called the decedent, has a surviving spouse and all of the can strain even the strongest and most coherent family,
decedent’s children came from that marriage, then the blended or homogenous. In the two cases I referenced in
surviving spouse gets everything in the decedent’s estate as the introduction, I had surviving spouses who were on good
the sole heir. But if the decedent had children outside the terms with some, but not all, of their deceased spouse’s
marriage, then all of the decedent’s children are heirs along children, and each was facing a long, hard, and expensive
with the surviving spouse. road to settle their spouse’s estate. Neither would have had
anything to worry about if their spouses had prepared wills
In such a case, the state provides a somewhat complicated to distribute their estates.
distribution scheme summarized in this and the following
paragraphs, which are intended to be illustrative,
but not necessarily complete. The law presumes that
property acquired during the marriage is community
property owned by both spouses equally, and that real
or personal property owned prior to the marriage or
received by gift or inheritance during the marriage is
the separate property of the person who received it.

Real property includes interests in land, for example,
surface ownership or minerals below the surface.
Personal property includes pretty much everything
else, such as money, vehicles, stocks, bonds, personal
effects, tools, furnishings, and so forth. Subject
to some allowances for the surviving spouse and
dependent children, state law provides that the
surviving spouse keeps his or her one-half interest in
real and personal community property and that the
children share equally in the decedent’s community
one-half.
In addition, the surviving spouse receives one third
of the decedent’s separate personal property and a
life estate in one-third of the decedent’s separate real
property. The children get the other two thirds of the
separate personal property, two thirds of the separate
real property, and the remainder in the one third of
the real property, subject to the survivor’s life estate.
If that scheme were not complicated enough, all of
the described interests are undivided, that is to say,
each unique community item, real or personal, is
owned jointly by the spouse and the children, and

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