If you have a will, the distribution of property comprising your probate estate is directed by the terms of the will. If there is no will, the property is distributed according to state law. What is included in one's probate estate? Generally, the probate estate consists only of property in your name alone (not joint ownership), and for which you have not designated a beneficiary.
If you have minors
If you have children who are minors, you definitely need a will, if only to specify who the guardian of their persons and property is to be if neither parent is around. If you don't have children who are minors, you need a will unless your personal wishes are exactly in line with state law.
The following general property distribution scenarios may be helpful to show what happens to the probate estate if one dies without a will. State laws vary greatly, however, and contain significant details not covered here.
Property distribution scenarios to consider
What happens if you die without a will while you are:
If you're in a second marriage
People contemplating (or already in) second marriages should be aware that a surviving spouse can renounce the deceased spouse's will and the inheritance it contains (if any), and instead elect to take a share of the estate specifically provided by state law—in many states, about half. Often, these individuals intend that each spouse's children inherit their parent's property, rather than the surviving spouse. To give effect to this intent, a pre-nuptial agreement should be worked out by attorneys for each spouse prior to marriage. (A similar agreement can also be prepared for those who are already married when they discover this issue.)
The simple "reciprocal" will is what is first thought of by most married couples.
This kind of will provides as follows:
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