Many people assume that when they pass away their assets will automatically be distributed to their children our spouse, but this is not always the case. First, it is important to know the difference between probate and non-probate assets. Non-probate assets include things like joint bank accounts or property held as joint tenants with right of survivorship. These types of assets pass automatically at death, and are not included in the decedent’s probate estate, whether or not the decedent dies with a will.
When someone dies without a will, they are considered to have died “intestate.” This simply means there is no will that describes how assets are to be divided. In such cases, the legislature has crafted a set of rules that lay out how someone’s property will be divided when they pass. These rules are meant to match the intent of what the legislature thinks someone would want done with their property based on familial relationships. However, this is often not the intent of the deceased.
Rules of Intestacy
The rules of intestacy depend on the family members that survive you. The easiest case is if you die leaving behind a spouse and children who are also the children of your spouse, provided your spouse doesn’t have any children from a previous relationship. C.R.S. §15-11-102. If this happens, your surviving spouse would get everything you leave behind under the theory that the children are your surviving spouse’s biological children and your surviving spouse will continue to provide for them. However, if you have a blended family and have some children from another marriage, this complicates things, and the distribution will vary based on the length of your marriage.
What If I Pass Away but Do Not Have a Spouse or Child Who Survives Me?
In this case, your property will pass to your parents equally if they are both alive (C.R.S. §15-11-103(30). However, if you parents are no longer living, this further complicates the laws of intestate succession. The rules of intestacy are complicated, and who you want to inherit your assets is generally not the person who will actually inherit them if you allow your probate estate to pass without a will. Also, unlike a will, which expresses your exact intent and can only be changed by you, the law is always evolving, and the legislature may amend the statute for intestate succession. Intestate succession also varies depending on the state. Additionally, some people incorrectly identify probate vs. non-probate assets.
It is important to discuss with an attorney the assets you have, how you want them to pass at death, and the best way to accomplish your intent. Contact our office today at (720) 809-8310 to speak to an attorney about drafting a will to properly distribute your property and ensure non-probate assets are correctly titled.