If a person dies before they have a chance to execute a last will and testament, they are said to have died “intestate.” When someone dies intestate, the laws of intestacy of the state in which the person lived or where their property was owned will determine how their estate will be divided among their heirs. New Mexico Statutes Annotated Section 45-2-101 et seq provides a default estate plan for those that die without a will. If the person owned property in another state, the intestacy laws of that state will determine who inherits that property. If the person has children who are under the age of 18 and do not have another parent or legal guardian, a judge will also need to decide who will act as a guardian and care for the children and manage their inheritance until they are of legal age.
As you can see, the implications of not having a will can be serious. This is because in many cases, a state’s intestacy laws will distribute a person’s estate in a manner contrary to what the person would have actually wanted, which they could have specified in a written will. Also, if there is property in another state whose law controls, things can get very complicated as there can end up being two different groups of beneficiaries who may be entitled to inherit portions of a person’s estate.
If All the Property You Own is in Your Home State:
If your only real estate or tangible personal property is owned in your home state, or you do not own any property in other states, then the people who receive this property will be selected according to your state’s intestacy laws. Therefore, understanding the intestacy laws of your state of residence is important. Intestacy laws can differ greatly between states. Many states, however, have adopted the Uniform Probate Code, which contains a standard intestate scheme. New Mexico is one of those states.
If You Own Property In More Than One State:
If you own property both outside and inside the state you live in, then you should consider who will inherit the property in the other state should you die without a will. Where this occurs, things can become muddy, as there may be two different sets of state law in play, which could lead to two completely different groups of beneficiaries. Where there is property held in more than two states, things become even more complicated, which is why it is most efficient to execute a will rather than allow the laws of intestacy to determine who takes what.
Guardianships for Minor Children:
In addition to considerations of who will inherit your property where it is not specified in a will, a very significant concern is who will care for minor children upon the death of an intestate parent or parents. Obviously, if one parent dies and the other is living, there is no issue as the living parent will continue to care for the children. However, if there is no living parent, a court will be forced to appoint a legal guardian for the children until they reach majority age. This is not ideal, as the deciding judge is likely to be unfamiliar with the children, your family, and their lifestyle. This could lead to someone caring for your children who you never would have selected yourself. This person will also be in charge of managing the children’s inherited portion of your estate. Guardianship of minor children is one of the major reasons we suggest a will in our article that covers the topic “Do I need a Will in New Mexico?”
Examples of Differing State Intestacy Laws
In one state, if your spouse survives you and all of your children are also your spouse’s children (in other words, you did not have children from a previous marriage), upon your death without a will, your spouse would inherit 100% of your estate. Your children would inherit nothing. In the same state, if you had children with a former spouse, your current spouse would inherit only one half of your estate, and all your children would inherit equal portions of the remaining half. In another state under the same facts, your current spouse could inherit only one third of your estate, while your children split the remaining two thirds equally.
So, What Should You Do?
These examples show just how different the results of intestate inheritance can be from state to state. The sole way to make sure your estate ends up in the hands of those you want to have it is to engage in thoughtful estate planning and execute a will spelling out your wishes. See our article for answers to many questions about making a will in New Mexico. If you are in need of assistance with this process, consult with an experienced estate planning attorney.