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Elizabeth Powell
Elizabeth Powell, Family Law Attorney
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Experience:  Washington State
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My brother-in-law has recently passed away and left no ...

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My brother-in-law has recently passed away and left no will, now a dispute has broken out between his fiancé (who he was living with at the time of his death) and his family . Who has rights to his estate?
Submitted: 9 years ago.
Category: Family Law
Expert:  Elizabeth Powell replied 9 years ago.

His parents. Here is a helpful webpage. XXXXX XXXXX

Jeffrey Jrenzo

Protecting Your Interests

Intestate Succession in Indiana
by Jeff Lorenzo

This article is intended to provide a brief explanation of intestate succession in Indiana. For additional information, contact an attorney with an expertise in Elder Law.

Intestate succession is defined at IC 29-1-2-1. The old adage among lawyers is that "if you don't write a Will, the State has written one for you". For any one who has no Will, the State of Indiana has already decided upon the distribution of his/her estate by virtue of its intestate succession statute. Because the distribution of assets described below is not likely to be as you intend, the best advise is to contact your attorney and have a Will drafted that reflects your desires.

If an individual dies without a Will, Indiana law provides for the following distribution of real and personal property belonging to that person:

1. One-third (1/3) of the net estate to the surviving spouse if he/she is survived by two or more children; or

2. One-third (1/3) of the net estate to the surviving spouse if he/she is survived by one or more children and the descendants of one or more deceased children; or

3. One-third (1/3) of the net estate to the surviving spouse if he/she is survived by the issue of two or more deceased children; or

4. One-half (1/2) of the net estate to the surviving spouse if he/she is survived by one child or by the issue of one deceased child; or

5. Three-fourths (3/4) of the net estate to the surviving spouse if he/she has no surviving issue, but he/she is survived by one or more parents; or

6. All of the net estate if there is no surviving issue or parent.

7. If the surviving spouse is a second or other subsequent spouse who did not at any time have children by the decedent, and the decedent left surviving him a child or children or the descendants of a child or children by a previous spouse, such surviving second or subsequent childless spouse shall take only a life estate in one-third ( 1/3 ) of the lands of the deceased spouse, and the fee shall, at the decedent's death, vest at once in such child or children, or the descendants of such as may be dead, subject only to the life estate of the surviving spouse. Such second or subsequent childless spouse shall, however, receive the same share of the personal property of the decedent as is provided in subsection (b) with respect to surviving spouses generally.

8. The share of the net estate not distributable to the surviving spouse, or the entire net estate if there is no surviving spouse, shall descend and be distributed as follows:

(1) To the issue of the intestate, if they are all of the same degree of kinship to the intestate, they shall take equally; or if of unequal degree, then those of more remote degrees shall take by representation.

(2) If there is a surviving spouse but no surviving issue of the intestate, then to the surviving parents of the intestate.

(3) If there is no surviving spouse or issue of the intestate, then to the surviving parents, brothers, and sisters, and the issue of deceased brothers and sisters of the intestate. Each living parent of the intestate shall be treated as of the same degree as a brother or sister and shall be entitled to the same share as a brother or sister. However, the share of each parent shall be not less than one-fourth (1/4) of such net estate. Issue of deceased brothers and sisters shall take by representation.

(4) If there is no surviving parent or brother or sister of the intestate, then to the issue of brothers and sisters. If such distributees are all in the same degree of kinship to the intestate, they shall take equally or, if of unequal degree, then those of more remote degrees shall take by representation.

(5) If there is no surviving issue, or parent of the intestate, or issue of a parent, then to the surviving grandparents of the intestate equally.

(6) If there is no surviving issue, or parent, or issue of a parent, or grandparent of the intestate, then the estate of the decedent shall be divided into that number of shares equal to the sum of:

(A) the number of brothers and sisters of the decedent's parents surviving the decedent; plus
(B) the number of deceased brothers and sisters of the decedent's parents leaving issue surviving both them and the decedent; and one (1) of the shares shall pass to each of the brothers and sisters of the decedent's parents, or their respective issue, per stirpes.

(7) If interests in real estate go to a husband and wife under this subsection, the aggregate interests so descending shall be owned by them as tenants by the entireties. Interests in personal property so descending shall be owned as tenants in common.

(8) If there is no person mentioned in subdivisions (1) through (7), then to the State of Indiana.

9. If the surviving spouse is a second (or subsequent) spouse, generally, he/she takes only a life estate in one-third (1/3) of the real estate of the deceased. The real estate, upon the death of the second or subsequent spouse, then vests in the surviving children by the first marriage. The second or subsequent spouse does, however, receive the same share of personal property as a first spouse.

Because no person has an inherent right to inherit property, the Indiana General Assembly has the power and authority to designate who shall inherit an individual's property if that person does not make a Will. Earle v. Indiana Nat. Bank of Indianapolis, 1965, 204 N.E.2d 652, 246 Ind. 251.

Best advice: See your attorney and make a Will. It is the best insurance you can have that your real estate and personal property will be transferred to your heirs as you determine - rather than the State of Indiana.

 

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Jeffrey J. Lorenzo
Attorney at Law
Lorenzo Law Office . 208 W. Second Street . Seymour, Indiana 47274
Phone: (NNN) NNN-NNNN . Fax: (NNN) NNN-NNNN . Email: [email protected]

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