We all make plans that are based on the possibility that a specific event may occur. Many of us carry more than the minimum required amount of auto insurance because we recognize the possibility that financial loss could result from an accident. Since it is 100 percent certain that each of us is going to die at some point, you might think that everyone would be prepared with a will or an estate plan, but that’s just not the case. Death is inevitable. It’s not a question of if, but rather when. Planning for death shouldn’t be left until we’re older. So, what happens if you die without a will?
First, let’s address some basic questions to make the article easier to understand.
What is a Will?
A will is a document (also known as a Last Will and Testament) in which you make your final wishes known. Who will care for your children when you pass? How will your assets be distributed? Do you have a plan for Fido? Was there someone you did not want to receive your assets? In this document, you would appoint a guardian for your children as well as name a personal representative (Executor) who will carry out your final wishes upon your death.
What does Intestate Mean?
The simple definition of intestate means to die without having made a will. Each state will have intestacy laws to help determine how your assets should be handled if you did not have a will in place. A part of each state’s intestacy laws includes succession laws on to whom your assets should be divided amongst and what percentage of your assets each party will receive.
Intestacy laws vary from state to state, but a typical pattern of distribution would be 50 percent of the property goes to the surviving spouse and the remaining 50 percent would be divided amongst the deceased party’s children.
The biggest issue with intestacy is the fact that your actual wishes are irrelevant. Let’s assume that you live in a state that has intestacy laws with succession distribution as we just discussed. Without an estate plan, regardless of your actual wishes, your estate would be divided between your spouse and children, even if you wanted your children or someone else to inherit the full amount.
What Happens to My Property?
Now that we’ve covered the basics, let’s talk about what happens if you die without a will what will happen to your property. If you own property jointly, that property may pass automatically to your joint owner upon your death. If you have an IRA or retirement plan, or you own life insurance, funds may pass automatically to your designated beneficiaries when you die as these are typically exempt from intestacy laws. Similarly, property held in a trust may pass automatically to a designated beneficiary.
In general, however, property will pass according to state intestacy laws. These laws govern the disposition of property when someone dies without a will, or with a will that doesn’t account for a portion of his or her estate.
Let’s say you die leaving $5,000 in a savings account. Who does the money go to? Without instructions from you, the money would go to the people or person that your state’s intestacy laws say it should go to.
There are many potential problems with allowing your property to pass by intestacy. For example, the distribution pattern imposed by your state’s intestacy laws could result in disputes among your heirs, and higher overall taxes due. Intestacy can be particularly problematic for unmarried couples, since intestacy laws generally will not include an unmarried partner in the distribution of property.
The best way to avoid intestacy is by creating a will. Working with an experienced Estate Planning Attorney in Prince George’s County, Maryland can help ensure that your will is properly prepared, and your wishes carried out in the event of your death.
With over a decade of experience, Attorney Regine Francois is an estate planning and probate attorney in Prince George’s County, MD. To schedule an appointment, please call 301-358-0377.