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Some people are concerned that the
state government always takes a portion or even all of a
deceased person's property when there isn't a valid
will. Although the state may receive a portion of
the intestate estate, this only occurs when there aren't
any qualified living heirs according to the appropriate
state's laws.
Determining Ownership
Every state has laws designed to
ensure that all property has a legal owner following the
most recent owner's death.
Most of these laws are related to the
deceased's formally expressed wishes, such as post-death
transfer by will, trust, or joint ownership. These
are the preferred instructions and, when otherwise
valid, will always be used to determine who will own the
deceased's property.
In the
absence of such instructions, each state also has laws
that establish a system for determining who will become
the owner of this intestate property. All
intestate laws define circumstances under which the
property will be given to the state government, but are
mainly focused on the deceased's relatives when trying
to determine who receives the property.
Escheat
Property that is given to the government because it does
not have a legal owner is said to
escheat. Fortunately, the escheatment of
property is always the 'last resort' of each state's
intestate laws. There must be an absence of every
living relation who may qualify as the deceased's heir
before any property is given to the state.
Final Qualified Heir
The intestate laws of every American
state are different, meaning that the likelihood of
escheatment differs with each state. A minority of
states will try to find any living relation before
allowing the property to escheat.
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Thirty-two states define a final level of relation that
is qualified to take the intestate property, without
which, all intestate property is given to the state. (Alabama,
Alaska,
Arizona,
Arkansas,
Colorado,
Florida,
Hawaii,
Idaho,
Indiana,
Iowa,
Kansas,
Maine,
Maryland,
Michigan,
Missouri,
New Hampshire,
New Jersey,
New Mexico,
New York,
North Carolina,
North Dakota,
Ohio,
Oregon,
Pennsylvania,
South Carolina,
South Dakota,
Tennessee,
Utah,
Washington,
West Virginia,
Washington D.C., and
Wyoming)
Among these thirty-two states, the
last level of relation that may qualify as an heir also
differs. For instance, the fourth degree of
relation, as determined through the grandparents, is the
last level that may qualify as an heir according to New
Hampshire's intestate laws. (OPEN
THE KINSHIP CHART) This means that the
intestate property will escheat if the deceased does not
have any relations closer than a first cousin, even
though there may be living relations as close as a first
cousin once-removed, great aunt, or second cousin.
An
even greater minority of states, just nine (Arkansas,
California,
Florida,
Kansas,
Kentucky,
Missouri,
Nevada,
Rhode Island, and
Virginia), look to the heirs of the deceased's most
recent spouse before allowing the intestate property to
escheat.
Determining Escheatment In Each State
To
learn when intestate property will escheat in any given
state, simply open each state's
Intestacy Calculator™
and answer each question as though there aren't any
living relations. When you have reached the
question pertaining to the final level of relation that
qualifies as an heir, the Intestacy Calculator™ will
automatically provide an answer that indicates the
estate will escheat.
Avoiding Escheat
Creating a legally valid will is the
easiest and most effective method of ensuring that all
property has a legally designated owner at the time of
death.
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