Parents as intestate heirs or ‘Where have you been all my life?’

3/1/2015 | Kaplin Stewart Blog

It really does not pay to assume anything when you’re dealing with probate and estate planning. First, you never know what a day will bring. As harsh as it sounds, there is no reason on earth to postpone writing an estate plan, because your loved ones could need it tomorrow.

Second, don’t assume that you can just let the state intestacy laws take care of your property, that your plans and state law mesh nicely if you don’t have a will. The rules of intestate succession — that is, the state laws that dictate how your property will be distributed if you die without a will — may be more complicated than you think.

The estate of actor Cory Monteith offers an example of one particular complication: the absent parent. Monteith died in 2013 at the age of 31. Without a wife or children, the general rule is that his parents will share equally in his estate. But Monteith’s parents split up when he was 9, and the actor had little contact with his father for the next 10 or 15 years.

Wouldn’t it be unfair, then, for his absentee father to receive half of Monteith’s estate? Both the law and Monteith’s mother thought so. She was able to petition the court in the matter, and Monteith’s dad eventually signed a document that confirmed that he had not paid child support and had not had much contact with Monteith while he was growing up.

So there is an exception. It isn’t just de rigueur that whoever is next in line according to the statute will be the heir. And when it comes to parenting, the law prefers that you at least be present in your child’s life for you to inherit.

The law, of course, is a little more specific than that. We’ll get into the details in our next post.

Source: Crain’s Wealth, “No one is promised tomorrow: Learning from Cory Monteith’s estate,” Andy and Danielle Mayoras, Jan. 29, 2015