When a person dies without a Will, he is said to have died intestate. When a person dies with a Will, he is said to have died testate.
When a person dies testate, the terms of his Will govern how his assets pass to his beneficiaries. When a person dies intestate, a series of statutes, commonly known as the Intestate Succession Statutes, govern how his property passes to his heirs.
A “beneficiary” is a person or entity, such as a charity, who the decedent named in his Will to receive a portion of his estate after his death. Because the assets of the estate were the decedent’s, the decedent can leave his assets to whomever he wants. When a person has a Will, it is important to ascertain who the beneficiaries of his estate are.
When a person dies intestate, his “heirs” inherit his estate. Heirs are relatives of the decedent: his spouse, children, parents, brothers/sisters, grandparents, aunts/uncles, cousins, and stepchildren. The closer the relation of the heirs to the decedent, the more likely it is that an heir will receive some or all of the decedent’s estate. For instance, if an individual dies with a spouse and with children who are also the children of his spouse, then his spouse will inherit his entire estate.
If a child dies without a Will and without ever having married or have children of his own, then his estate will pass to his parents in most instances. Several years ago, the New Jersey Legislature learned of cases where parents abandoned or abused their children and sought to inherit from their now-deceased child’s estate.
In order to prevent a parent who abused or abandoned his child from receiving any portion of the deceased child’s estate, the Legislature passed a law that essentially prohibits a parent from inheriting from his deceased child’s estate if the parent abused or abandoned the child during the child’s lifetime. In a very recent case, the Superior Court of New Jersey, Appellate Division, had an opportunity to interpret this statute for the first time.
In that case, the mother and father of the child were divorced. In addition, the father had some criminal issues. The father paid child support, but not all of his support. There was a restraining order entered against the father that prohibited him from freely visiting with his son. The father also had health issues and had to move to another state. So, the father’s contact with his son was extremely limited.
The son died, and although the case doesn’t say much about the issue, I assume there was a medical malpractice case that resulted in the son’s estate having a value. The mother of the child attempted to preclude the father from inheriting any portion of the son’s estate under the abandonment statute, claiming that the father abandoned his son.
In essence, the Appellate Division held that there was insufficient evidence to prove that the father abandoned the son in such a manner as to rise to the level of willfully forsaking the child, which is the requirement of the abandonment statute. The court noted that the father did attempt to have contact with his son and did pay some of his child support obligation. The father also attended his son’s funeral.
In this case, since the child was a minor, he would not have been able to make out a last will and testament. So, the child had to have died intestate. An individual must have attained the age of eighteen in order to make a Will.
If you have attained the age of eighteen, and I assume that you have if you are reading this article, then I would strongly recommend that you have a Will. While there are a series of statutes that govern who will receive your estate if you did without a Will, it is always easier for your family if you die with a Will.
Being aware of abandonment laws ensures children are protected in complex family situations. Proper planning safeguards their interests and future.