Key Takeaways
- A person dying without a legal will is said to die intestate.
- Without a will, a probate court is tasked with distributing the deceased’s assets.
- Courts often prioritize spouses and close family members to inherit the estate.
Unraveling Intestate: The Consequences of Dying Without a Will
When an individual with a valid will passes away, their assets are distributed according to their wishes stated in that document along with any established trusts. Despite its importance, many neglect this aspect of estate planning. For instance, a 2021 Gallup poll revealed only 46% of Americans aged 18 or older had a will. Even among those 65 and older, only 76% reported having one.
Intestate refers to the condition where an individual dies without a will. Under intestacy, a probate court is responsible for asset distribution. Properly crafting a comprehensive will, preferably with legal assistance, ensures assets go to intended beneficiaries rather than through judicial allocation. Constant updates to the will are crucial to reflect any changes in personal wishes.
Navigating the Probate Process When There’s No Will
After a person dies intestate, probate courts appoint an administrator to manage the estate. This administrator compiles the deceased’s assets, settles debts, and distributes the remaining assets to beneficiaries as determined by a probate judge. This role mirrors that of an executor named in a will.
Finding legal heirs—like surviving spouses, children, and other relatives—is a primary duty of the administrator. The order in which heirs inherit is termed intestate succession and varies by state. Most states prioritize the surviving spouse and children. In community property states (like California and Texas), spouses typically receive at least half of marital property. In common law states, the distribution still often prioritizes spouses but can vary significantly based on the presence of other relatives.
If unmarried or widowed individuals die, assets generally first go to surviving children. Absent close relatives, the estate might escheat to the state. This process results in the state gaining ownership if no kin are located.
Friends or non-related beneficiaries are often not recognized in state intestate laws. However, any joint assets (like joint bank accounts) generally revert to the surviving joint owner(s).
Costs Associated with Making a Will
Creating a will, a crucial estate planning step, can be relatively affordable. DIY will kits might cost around $10. Hiring a lawyer incurs higher costs but ensures comprehensiveness and legal soundness—with fees ranging from about $150 to $1,000 or more for complex circumstances.
Why Consider a Trust Over a Will?
Trusts can simplify the inheritance process, bypassing the probate court that wills generally must go through. Establishing a trust often comes with creating a pour-over will to manage any assets not explicitly covered by the trust.
Understanding Testamentary Wills
A testamentary will, or last will and testament, is the standard-type will representing the wishes of the deceased, known in this document as the testator.
Final Thoughts
Dying without a legal will initiates court-driven asset distribution—often misaligned with personal wishes. Establishing and periodically updating a will guarantees asset allocation aligns with the testator’s intentions, preventing unintended judicial distribution.
Related Terms: executor, beneficiary, trust, will, probate, estate.
References
- Gallup News. “How Many Americans Have a Will?”
- Internal Revenue Service. “Part 25. Special Topics: Chapter 18. Community Property: Section 1. Basic Principles of Community Property Law”.
- Cornell Law School, Legal Information Institute. “Last Will and Testament”.
