Ask the Probate Judge—Intestate Succession, Part 2
Rudd, appeared June 27, 2002, Albuquerque Journal, Business Outlook
Reprinted with permission
Q: I read your column on intestate succession about the spouse's inheritance
rights to separate property. What if there is no spouse? Does the state get
Good question! My previous column outlined a surviving spouse's intestate inheritance rights to both separate and community property. Remember that intestate means dying without a valid will. It is the job of the personal representative of the decedent's estate to determine the amount of the shares to distribute to each beneficiary.
Suppose there is no surviving spouse and no valid will, but the decedent has surviving children. Under intestate law, these children (called "decedent's descendants") inherit equal shares of estate. If one child has died, that child's share passes to his or her children. If more than one child has died leaving children, then all of the deceased children's children split those shares equally. This division is known as "by representation," sometimes called "per capita."
If the decedent had no surviving spouse or children, the surviving parents of decedent are next in line to inherit under intestate law. Parents inherit equal shares of the estate if both survive, or all if one parent has died. If there are no surviving spouse, chil-dren, or par-ents, then decedent's brothers and sis-ters inherit equal shares of the estate, by representation. If one sibling has died, that sibling's share passes to his or her children, if any, and, if none, to the other siblings.
If there are no surviving spouse, chil-dren, parents, or sib-lings, but surviving grandparents, one-half passes to paternal grandparents and one-half to maternal grand-parents, but if not alive, to more dis-tant relatives.
A person's intestate estate passes to the state only if no takers (relatives) exist. In that case the property escheats to the state and becomes part of the "current school fund" per the New Mexico Constitution. In reality the absence of all relatives is not very common. If the decedent has absolutely no living rela-tives, (s)he should have created a will or trust leaving property to friends, charity, etc. This would prevent the property from passing to the state.
A valid will trumps the laws of intestate succession. If you do not intend for one of your children or other relatives to inherit, you must have a will that clearly states your intentions. If you did not leave a valid will, under intestate law, the child or relative you wanted to disinherit will receive a share of your assets despite your wishes.
Remember that New Mexico's laws on intestate succession only provide for blood relatives, so if you wish to leave something to in-laws, charity, a school, friends, or other non-family members, a will or trust would be neces-sary.
© 2002, Merri Rudd & Albuquerque Journal, All Rights Reserved