2016-01-27-elena-hruleva-barnimages-001In part 3 of our series on dying without a Will in Utah, we will discuss what happens to property after a person’s death if that person is single, divorced, or widowed. If the wishes of yourself or someone you love will be affected adversely by the probate rules described in this article, it is crucial that you put a Will or Trust in place to modify the probate process to align with your wishes.

These rules especially affect inheritance in two situations: 1) When an unmarried person dies without children, some of their siblings predeceased them, and those siblings had children, and 2) when a widowed grandparent dies, some of that grandparent’s children predeceased them, and those children have living children

All of the property of the deceased that does not pass to a surviving spouse passes to other “classes” of people. The estate passes equally to all members of the first “class” available. The classes are considered in the following order according to relationship to the decedent:

1. Descendants per capita (defined below)
2. Parents
3. Siblings per capita
4. 50% to paternal grandparents per capita, 50% to maternal grandparents per capita
5. Descendants of any deceased spouse per capita

“Per capita” is a method of determining how to divide an estate. It allows for surviving children of a deceased class member to inherit a portion of what their parent would inherit, as illustrated below:


Here, the Decedent had three children with one surviving. If only the Decedent’s children could inherit, then Bob would receive everything, leaving Alice’s children nothing from their grandparent. The Per Capita system counts how many people in a class are surviving, plus how many deceased people from that class have surviving children. In this case, the class is Decedent’s children. We count Bob because he is alive, plus Decedent’s deceased children with surviving descendants (Alice). This means that the amount that the class will receive will be divided into two parts, equally divided between Bob and Alice. Since Alice is deceased, her descendants will receive her half equally.

To make things a little more complicated, imagine if Edith was dead but left two surviving children. In that case, Edith’s children would each receive half of Edith’s share that she would have received through her mother, Alice, or 12.5% of the total estate.

Now, let’s illustrate what would have happened if Charles had surviving children:


Here, the chart shows that Charles left one child alive, and the result drastically changes how everybody’s shares are allocated. Instead of dividing the estate into two large parts, it is divided into three large parts, since Bob is surviving (one part) and Alice and Charles both have living descendants (two parts). Bob receives his 33% share, and the remaining 67% is divided further. Edith, Francine, and Joseph’s parents are deceased, and none of their deceased cousins had surviving children, so the remaining 67% of the estate is divided three ways and distributed evenly.

In other states, a “per stirpes” system is used instead of a “per capita” system. A per stirpes system would divide property according to lineage. For example, in this chart, Edith and Francine would each receive half of Alice’s one-third share, or one-sixth of the entire estate. Joseph would receive his father Charles’ entire one-third share, or one-third of the entire estate. Even though Joseph, Edith, and Francine are all orphaned grandchildren of the Decedent, Joseph would receive twice as much as his cousins under a per stirpes system. Because the per stirpes system is used in other states, some Utahns may erroneously expect that system to control their estate. However, if a Utahn prefers the per stirpes system to the per capita system, then they must state so in a Will.

To complete our per capita system explanation, imagine if Harold had two surviving children, and Irene had one surviving child:


Here, three surviving great-grandchildren change the distribution of the estate. Bob’s one-third share remains unchanged, but the remaining 67% of the estate is now divided five ways. Three of those parts represent Edith, Francine, and Joseph as surviving grandchildren of decedent. The remaining two parts represent the accounting for Harold and Irene, as deceased grandchildren of the decedent who left children alive. The three parts for Edith, Francine, and Joseph are distributed equally amongst them, while the remaining two-fifths of the 67% of the estate are distributed equally among Lucy, Mary, and Nathan as surviving great-grandchildren of the decedent whose parents and grandparents were not alive to inherit from their great-grandparent.

I know these rules can be daunting, but if you want to die without a Will, it is crucial that you be informed as to what will happen to your property. Once again, if you do not like the per capita system, you can always change it through a Will or Trust. Join us next time as we discuss the ways that the Utah Probate Code recognizes children for inheritance purposes (hint: parents of adopted children can rest easy, but stepparents wanting to leave something to stepchildren had better put something down in writing).