When you don’t have a will your property will go to your heirs under the laws of the state in which you reside by intestate succession. The purpose of intestate statutes is to distribute your property in the way the average person would have designed his or her estate plan. The outcome can cause many problems for those families with unique circumstances including “blended families” (a term for a second marriage), minor children or children with special needs.
Partners David Ball and Michael Barry discuss the firm's Estate Planning practice and experience.
Here are just a few common pitfalls that can occur if you do not have a will:
Surviving Spouse: If you are married and want your surviving spouse to have your entire estate, you must write a will because your state’s laws may only give your spouse a portion of your assets.
Minor Children: If you have minor children a court will need to appoint a custodian to look after the inheritance on their behalf (commonly referred to as a conservator) to hold until they become adults. Of course, the person who the court appoints as a conservator may not be the same person you would have appointed to care for your children. In addition, in many cases, when the children reach eighteen (18) they may be entitled to receive any money outright and without any restrictions. This can (and usually does) lead to waste or misuse of your estate.
Children with Special Needs: If you have children with special needs who qualify for government benefits, an inheritance given outright (not in trust) to such an individual could be more harmful than helpful as it could disqualify them from receiving their benefits for the statutory penalty period and in some cases they could be required to repay past expenses.
Unique Family Situations: The intestate succession statutes are not (and cannot be) designed to meet the unique needs of every family. For example, if you are in a second marriage in which both spouses have children from a prior marriage the intestate succession statutes will most likely produce an undesirable result in which your second spouse and surviving children may not receive the inheritance that you would have intended.
HOW WILL YOUR ASSETS BE DISTRIBUTED UNDER STATE INTESTACY LAW?
State laws vary, but generally you can assume your close relatives will take your property before distant relatives. The people who get your property first would be your surviving spouse, then your descendants (kids and grandkids). If they are not living, or if you have none, your parents would take, then your siblings, and then your nieces and nephews.
If none of them are living, your grandparents would take and next, your aunts and uncles and cousins. Adopted descendants are the same as if naturally born. If you have no living relatives after this analysis, then your property goes to the state.
With or without a will, your estate will go through probate, unless you have created an estate plan with a revocable living trust. Some states do allow smaller estates to be administered outside of the probate process if they are under a certain amount (e.g., under $50,000 and contain no real estate). If the costs of probate and attorney fees plus the time delays become a burden, a surviving spouse may ask the court for an advance against the estate.
Settlement of an estate through the probate process may take a year or more. Probate is public and denies you the privilege of keeping your most personal affairs private.
WHO WILL CARE FOR YOUR CHILDREN?
If you die without a will, under which you would normally name guardians of your minor children, the court will decide who qualifies to raise your kids and who will manage their money. Under state law, a minor or incompetent person may have a guardian of their person and a guardian of their property appointed.