Many people wonder if it is really necessary to make a Will. Married couples often assume that if they die intestate (without a Will), whatever assets they own will go to their spouse. This is true for most property that is jointly owned with a spouse and any property that passes by beneficiary designation (typically retirement accounts and life insurance) where the spouse is named as beneficiary. However, all other assets—usually referred to as “probate assets”—will pass as provided by Pennsylvania law if there is no Will providing otherwise.
When a married couple has no children, and one spouse dies, there are two possible results. If the spouse that dies has no living parents, the surviving spouse will receive all of the probate assets. However, if the deceased spouse has at least one living parent, the surviving spouse will receive the first $30,000 of the probate assets, plus half of the balance. The rest of the probate assets will go to the deceased spouse’s parent or parents. For example, if one spouse dies leaving $500,000 in probate assets (remember, these are assets that are not held jointly or that do not have a beneficiary designation), the surviving spouse will receive $265,000 ($30,000, plus half of $470,000) and the parents will receive $235,000 ($500,000 less $265,000). This is probably not the desired result, as most married couples want to leave everything to each other or would prefer dividing the assets in a different way.
In the case of a married couple with children, similar rules apply. If all of the children are the children of the deceased spouse and the surviving spouse, the surviving spouse will receive $30,000, plus half of the remaining probate assets. The children will receive the rest. If the deceased spouse has children from a prior relationship, the surviving spouse will only receive half of the probate assets, and the children will receive the rest. In this case, if the probate assets are worth $500,000, the surviving spouse will get $250,000, and the remaining $250,000 will be split equally among the children.
When a single person dies without a Will, the probate assets will be split among the person’s children, if any. If there are no children, and at least one parent is living, all of the probate assets go to the person’s parent or parents. If no parent is living, the probate assets will be split among the person’s brothers and sisters, and if they are not living, then nieces and nephews. If there are no children, parents, siblings, or nieces and nephews, the probate assets are split among grandparents, if they are living, and if not, then aunts and uncles and their descendants.
While the intestacy laws were written in an attempt to approximate most people’s wishes, the laws do not always succeed. You may wish to leave something to a friend or a charity, or leave specific items to particular family members. Furthermore, most parents want assets passing to children, particularly younger children, to be held in trust for a certain period of time. Almost everyone could benefit from writing a Will. Doing so allows you to be sure that your assets will be handled exactly the way you want.