What If You Don’t Have a Will: The Basics

What happens if you don’t have a will? State laws decide who gets your stuff. This can mean loved ones you want left out won’t get left out. The probate process can cause delays and disputes. Here’s why having a will is so important and what happens if you don’t have one.

Talk to a local estate planning attorney to make sure you’re planning and passing on what you want to your beneficiaries.

Quick Points

• Dying without a will means intestate succession where state laws decide who gets what, and can leave out close friends and non-blood relatives.

• The probate court is in charge of distributing assets when there is no will, which means administrative costs, delays and emotional stress for surviving family members.

• Having a will is the roadmap for your assets to go to who you want and naming legal guardians for minor children; however, it still must go through probate court.

What is Intestate Succession

When someone dies without a will, the process of intestate succession is triggered. This means the probate court manages how their assets are distributed according to the state’s intestacy laws. These laws of intestacy can result in distributions that are not what the decedent would have wanted, and can cause friction and complexity within the family.

Understanding this is key. Without a testamentary document like a will, your estate is under the control of your state’s laws which can disinherit people like close friends, step-children, or life partners you would have otherwise left in. The laws vary by state so it’s important to understand how they work in your state. To get started with this discussion we need to define what “intestate” and “succession” mean in this context.

What is Intestate

Dying without a will is called “intestate.” Under these circumstances, the assets of the deceased are distributed according to the state’s intestate succession laws. These laws give priority to certain family members for inheritance purposes—spouses and children are first in line.

Stepchildren and long-term partners may be left out of the will and get nothing from the estate under intestate succession, even if they were close to the deceased. Understanding what it means to die intestate is why having a valid will is so important.

What is Succession

Intestate succession laws determine the order of distribution of a deceased person’s assets, to legal and blood relatives. So possessions go to immediate family members like spouses, children, parents and siblings.

In this process of asset distribution overseen by the probate court, the state’s intestacy laws are followed so everything goes according to legal protocol when someone dies without a will.

What Happens If You Die Without a Will

Dying intestate, or without a will, can cause many problems for your family and estate. These include:

• Long and complex legal process

• More emotional stress for loved ones

• Probate court to manage assets and oversee the probate process

• Big administrative costs

• Delays in getting assets to beneficiaries

Family members will have to figure out how to divide assets after their loved one dies.

Probate Court

When there is no will, the probate court decides how to distribute the assets of someone who has passed away. They follow the state’s intestacy laws which is the default mechanism for dividing up the estate. This is a messy and time consuming process that will need legal advice to manage efficiently.

A personal representative is appointed by the probate court to manage the deceased’s estate. Their job is to pay off any outstanding debts and then distribute what’s left according to the state’s intestacy laws.

Impact on Surviving Spouse

Inheritance rights for a surviving spouse are determined by the state’s intestacy laws. Depending on the state, a surviving spouse may get the whole estate or share it with children. For example, Florida allows a surviving spouse to get the whole estate if there are no children, while New York gives the spouse $50,000 and then half of what’s left. Any existing children get the rest. This is why it’s important to understand the intestacy laws of each state.

Impact on Minor Children

When a parent dies without a will, the fate of their minor children becomes unclear. There are several options for who will take care of them and be their guardian.

• The surviving parent becomes the legal guardian

• A guardian named in the deceased parent’s will takes custody

• If there is no living designated guardian and no surviving parent, the court will appoint someone as guardian or put the child into state custody through the foster system.

It should be noted that court decisions may not always be what’s best for these minors.

Under the state’s intestacy laws which govern inheritance distribution when there’s no testamentary direction from parents, children will get shares as dictated by law rather than what their now deceased parents might have intended.

State Intestacy Laws

When someone dies without a will, their estate is distributed according to the state’s intestacy laws. These laws provide the framework for dividing up assets among heirs when there’s no will. Note that these intestacy laws vary from state to state and will affect how much of the entire estate surviving family members will get.

Understanding the differences in state intestacy laws is important for those who are creating an estate plan or dealing with a situation where a family member has died without a will.

Community Property vs. Separate Property States

In community property states, both spouses own everything acquired during their marriage. If one spouse dies, these assets go straight to the surviving spouse.

In separate property states, any asset acquired by one spouse is considered theirs alone unless it has joint ownership titles. These differences have big implications for property distribution according to state intestacy laws when someone dies without a will.

State Examples

State laws determine how property and assets are distributed when someone dies without a will, with big differences for surviving family members. In Florida, strict formulas are applied to divide the deceased’s belongings among their closest relatives under intestacy laws. In California, all community property goes to the surviving spouse and all separate property is split between the spouse and children. These examples show why it’s important for families to understand their state laws so they can plan ahead for when a family member dies.

Non-Probate Assets

Assets that bypass the probate court and go directly to named beneficiaries when someone dies are called non-probate assets. These include life insurance policies with named beneficiaries, property owned in joint tenancy with rights of survivorship and jointly held bank accounts.

Knowing these types of assets is important for estate planning because it allows you to plan your estate so you can avoid the long and complicated probate process.

Joint Tenancy and Joint Ownership

Joint ownership and joint tenancy arrangements allow for automatic transfer of assets to the remaining owner without probate. For example, if real estate is owned in joint tenancy with rights of survivorship, it will go to the surviving co-owner. In the same way, when a bank account is owned jointly, it will pass to the surviving person on that account without probate.

Beneficiaries

Beneficiary designations on assets, including retirement accounts and life insurance policies, allow those assets to bypass probate and go to the beneficiaries you have named. Updating these designations regularly is important so your assets will be distributed according to your current wishes.

In the case of a retirement account with named beneficiaries, the retirement benefits go directly to those individuals without probate. So the named beneficiaries get their share right away.

Family Members

No will can cause big problems for family members, not just financially but emotionally. When someone dies without a will, family members are left in limbo and disputes arise over asset division.

In the discussion below we’ll get into the problems families face during intestate succession.

Financial Stress

Probate can be expensive as administration fees and legal costs can eat up a big chunk of the estate. In Florida, attorney fees for an estate worth $500,000 probated can be upwards of $25,000. Assets may be tied up for months or even years during the probate process and be unavailable for living expenses.

These financial pressures can be tough on family members left behind.

Emotional Stress

Succession can have a big emotional impact. Family members may be dealing with grief and uncertainty and potential disputes over asset division.

As the probate process unfolds it can bring up old family dynamics and unresolved issues to the surface, making the emotional stress worse.

What to Do When Someone Dies Intestate

When someone dies without a will, there are certain steps to take to handle their estate such as filing an application at the probate court and consulting with an estate planning attorney.

File a Petition with the Probate Court

The probate process starts by filing a petition with the probate court. This requires identifying the correct county to file in, presenting a certified copy of the death certificate and notifying family and creditors of the proceedings.

After the petition is approved, Letters of Administration are issued to the personal representative by the court. These give them the authority to manage and distribute parts of the deceased’s estate during probate.

Consult with an Estate Planning Attorney

Consulting with an estate planning attorney is crucial to navigate the complex steps of probate and ensure assets are distributed correctly. An attorney can prevent disputes among beneficiaries and make sure the estate is settled quickly and legally.

For example, TrustWorks offers free initial consultations with their attorney to get you educated on the probate process.

Why Have a Will

Having a will is important for managing asset distribution and naming a legal guardian for minor children. Without a will, state intestacy laws will determine how your assets are divided, and it may not be what you want.

Asset Distribution Control

By having a will you can:

• Name who and what gets your assets

• Name specific recipients for certain items of your estate

• Not include some people as beneficiaries

• Make sure your assets are distributed according to your wishes, unless there’s a will contest during the probate process

To avoid unexpected outcomes like accidentally leaving out important people, you need to review and update your estate plan regularly.

Naming a Legal Guardian

Naming a legal guardian for your minor children in your will is important so they are taken care of by someone you trust. It prevents family conflicts and gives you peace of mind knowing your children’s care is in good hands.

Avoiding Probate Problems

Having a clear will makes the probate process simpler and faster for your beneficiaries. It reduces time and cost for them to access their inheritance.

Estate Planning Solutions

Estate planning is more than just having a will. It includes using tools like living trusts and hiring estate planning services to get a comprehensive approach to managing and distributing your assets according to your wishes.

Living Trusts

A living trust, also known as a revocable trust, allows you to control your assets while you’re alive and dictate how they’re distributed after you’re gone. Usually managed by yourself as the Trustee, this estate planning tool can bypass probate and make the transfer of assets to heirs quick and smooth.

When you pass away, a pre-named successor Trustee will take over and implement the terms of the living trust. This includes managing and distributing its contents according to your wishes without probate.

Estate Planning Services

Consulting with an estate planning attorney, like an elder law attorney, is important to get an estate plan that reflects your current situation and wishes. These professional services will make sure your estate plan is updated and aligned with your latest situation and avoid conflicts among beneficiaries and make the transfer of assets smooth.

An estate planning attorney has the knowledge to tackle complex legal issues and avoid problems. They can make sure everything is done right.

Conclusion

In short, dying without a will can put a lot of legal, financial and emotional burden on your loved ones. Intestacy laws are state specific and can distribute your assets the way you didn’t want and require probate court and may cause family conflicts. It’s best to know these laws and do early estate planning like having a will so your wishes are respected and spare your loved ones more trouble.

Taking concrete actions like having a will, naming a legal guardian for minors or dependents, considering living trusts and consulting with experts in estate planning allows you to decide how your assets will be distributed when you pass away. These proactive steps give you peace of mind that your affairs are in order according to your thought-out decisions during your lifetime and security for your family after you’re gone. So not leaving estate matters to fate and instead start planning now will keep your family stable going forward.

FAQs

What happens if you die without a will?

If you die without a will, the distribution of your assets will be governed by intestacy laws of the state. These laws may not be what you would have wanted for your estate.

Having a will is important to make sure your assets are distributed according to your wishes.

How does probate court get involved if there is no will?

If there is no will, the probate court will follow intestacy laws to distribute assets and appoint a personal representative to manage the estate. However, a will also must go through probate court prior to the estate being administered.

What are non-probate assets?

Assets that bypass probate and are given to beneficiaries after someone dies are co-owned bank accounts, life insurance policies and retirement accounts with designated beneficiaries.

You can transfer these types of assets to family members or other heirs through this direct transfer process after you’re gone.

How to avoid probate?

Consider having a living trust to bypass probate. These will help in distributing your estate faster and avoid the probate process.

Why consult an estate planning attorney?

An estate planning attorney will help you manage your estate according to state laws and your wishes to avoid family conflicts and smooth transition.

‍