Estate Planning Lawyer

Preparing a valid last will and testament can prevent significant hassle for your loved ones later on, but an estimated two-thirds of Americans do not have a will. While assets can be passed to beneficiaries and heirs without a will, it does make the process more time-consuming and stressful. Our friends at Warren & Migliaccio, L.L.P. review what happens in some states when you pass with out a will.

Dying Without a Will

When someone passes away without a will, it is called intestacy. An intestate estate is subject to state succession laws and may need to go through probate to accomplish the numerous tasks associated with settling the estate. These tasks include:

• Appointing an administrator to handle the estate

• Name beneficiaries and locate heirs

• Determine asset distribution

There may not seem to be many differences between probate with and without a will, but the most impactful distinction is the control the decedent holds. 

Creating a will allows the testator (the person making the will) to name beneficiaries and allocate assets. They can choose anyone to receive property upon their death, including friends, neighbors, distant relatives, and nonprofit organizations. However, without a will, the court will use the state’s succession laws, which place strict limits on who can receive an inheritance. 

Succession Laws

There is a hierarchy to inheritance when there is no will to stipulate otherwise. In several states, the order looks something like this:

• Spouse

• Children

• Parents

• Siblings

This is an incredibly simplified list, as the actual rules are much more complicated. Here is an example of how complex some state’s succession laws are:

• If the deceased person has a surviving spouse and mutual children, the spouse inherits all of their community property, one-third of the personal property, and a right to the real estate. The shared children equally inherit the remaining property. 
• If the decedent leaves behind a spouse and children from a previous relationship, the current spouse inherits half of their community property, one-third of the personal property, and a right to the real estate. The children inherit the remaining personal property and the other half of the community property. 

The succession laws continue at this level of complexity for various familial situations, such as if the decedent was not married, had no children, or no family can be located. 

It is not always necessary for an estate to pass through probate, regardless of whether a will exists, because not all property is subject to probate. If an asset has assigned beneficiaries, it can pass directly to that beneficiary without the need for probate. The most common examples include life insurance policies, retirement accounts, and financial accounts.

Creating a will may seem like an uncomfortable process, but it can prevent loved ones from struggling through a difficult probate process while they grieve. Consider connecting with a local qualified estate planning lawyer to go over the best options for you and your family.