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Dearly beloved, we’re gathered here today to discuss the unfortunate circumstance of dying without an estate plan. Most people are aware that having an estate plan is important and that they should have one, but how many actually understand the consequences of passing away without one? If we had to guess, not many at all.
We all take life for granted in some way or another, and failing to follow through on creating even a basic estate plan might be one way you’re assuming you have more time than you think. It’s a harsh reality, but none of us really knows the date or time that we’ll pass away – if we did, we’d be living our lives a lot differently! We’d also be making sure our affairs are in order so that our loved ones don’t have to deal with the messy consequences of dying intestate.
What Is Intestate Succession?
Intestate succession is the legal process of administering an estate without a valid will, according to state law. Importantly, state law determines who inherits property from an intestate estate and how much of it. “Dying intestate,” then, is to die without an estate plan in place – not even a basic will.
If you’ve ever had to go through probate for a loved one’s estate before, you’re probably aware of the kind of marathon it can be. As a process overseen by the court, there’s a distinct sequence of events to properly probate an estate, and the personal representative of the estate has a myriad of important tasks to perform – all while potentially exposing themselves to liability as a fiduciary.
Other than guidance from a lawyer, one of the things that makes probate easier for a decedent’s loved ones is a well-prepared will. If one held their estate in a trust, then probate may not even be necessary! When an intestate estate must be probated, however, the process can be a lot more difficult.
Why Not Having a Will Is a Problem
By now, you should have a general grasp of why not having a will is a problem. Let’s now inspect some more specific reasons why dying without an estate plan and intestate succession are less than ideal.
You Haven’t Named an Executor
When you write a will, you name an executor. This is a person you trust to handle your estate’s affairs, especially the most important first steps that begin probate: obtaining your death certificate and filing your will for probate.
Your executor is probably also the person who will carry out the administration of your estate. This person’s organizational skills and attention to detail make it possible to efficiently and effectively move through the process. As a fiduciary, your executor is accountable to your heirs and all of their actions lead up to ensuring your loved ones receive their inheritances.
If you die intestate, you don’t have an executor. What happens in this situation is that the court will appoint one of your relatives to fulfill this role, but the person selected may not be the person you would have chosen. This situation can lead to errors that might spark litigation and even familial strife that you never intended to occur.
You Haven’t Specified Inheritances
When someone dies intestate, only certain people are entitled to inherit their property. If the decedent leaves behind a spouse and children, chances are the totality of the estate is split among them.
Even if a spouse and children are the only people to receive inheritances, the way this occurs can be a bit unexpected. For example, a spouse inherits all of the decedent’s community assets but must split any separate property with their children. If there is only one child, this split is 50/50. If there is more than one child, then the spouse received one-third of the property and the remaining two-thirds is evenly distributed among all children, whether they’re biological or adopted.
Needless to say, the way intestate succession handles the division of an estate can greatly differ from what most people would intend. Relatives such as siblings, nieces, nephews, and parents can be left out of an inheritance unless they are the closest living relatives of the decedent.
You Haven’t Chosen a Legal Guardian for Your Children
Parents of children younger than 18 have a special consideration for their untimely passing: guardianship. If a minor child is orphaned by the deaths of their parents, someone must step in to provide care.
With a will, you can name a trusted relative or friend to be your child’s legal guardian in such a situation. If you don’t, then the court will attempt to find one of your child’s relatives to fulfill this role. Like an executor, who volunteers for this role and whom the court selects can differ greatly from what you would have ever intended.
Worse yet, if there are no willing and able individuals among your child’s relatives to become their guardians, your children will likely be placed in a foster home until they’re adopted or age out of the foster care system.
Intestate Succession Can’t Be Challenged
We previously mentioned that intestate succession is guided by state law. Whereas provisions of a will or the entire document can be contested, almost no aspect of intestate succession can be legally contested. This means that your relatives are essentially powerless to fight for better outcomes that would align with what you would have otherwise intended.
The best way to ensure your intentions are carried out is to make them known in a professionally crafted will.
Do You Need Help with Your Estate Plan?
If you don’t have an estate plan or wish to make adjustments to an existing plan, don’t hesitate to reach out to Nguyen Law Group for help. Our attorney is skilled when it comes to helping clients carefully plan for the future, ensuring that no important issues are left unaddressed in their overall estate plan.
No matter how simple or complicated you want your plan to be, we are happy to accommodate your needs with personalized legal service. Learn more about how we can make a difference for you and your loved ones by scheduling a free consultation with us today.
Contact Nguyen Law Group online now to learn more.