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What Happens When You Do Not Have a Will?

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.

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.

Probate

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. When an estate goes through probate, your family, friends and/or neighbors may attend court hearings deciding who gets the kids and who gets the house.

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.

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