A last will and testament is not a requirement in any state, but is an option available to all. Dying without a will is known as dying intestate. Fortunately, it’s not as dire as it sounds because there are state laws in place that decide what happens to your assets.
Lack of a will
There are several situations that fulfill the intestate definition under probate law. If you die and have not created a last will, this is the most obvious situation. However, it is also possible that there is a will but it turns out to be invalid once it has gone through the probate process. A probate attorney will tell you that for a will to be enforced, it must be created while you have a sound mind (mental capacity to create a will), signed under free will (no one is forcing you to sign it), and signed in front of witnesses (who are not beneficiaries) who can attest that you were able to make a will. If your will does not check all of these boxes, it can be invalidated by the probate court and intestate succession will be used in its place.
Property not affected by intestacy
When you’re considering whether or not you need a will, keep in mind that there is a variety of property that passes without a will and without any intestacy proceedings. This includes:
- Assets in a living trust
- Real estate owned as joint tenants, tenants by the entirety, or community property with right of survivorship
- Life insurance benefits with beneficiaries
- IRAs, 401(k)s, or retirement funds with beneficiaries
- Stocks or bank accounts owned in a payable on death account
- Real estate or vehicles held as payable on death
Who gets what
When a person dies intestate, there are set procedures established in each state that dictate how the person’s property is passed on to relatives. In most states, if you have a spouse or domestic partner, he or she will get all of your property if you have no children. If you have one child, your assets are split between your spouse and child. If you have more than one child, one-third goes to your spouse with the rest to your children. Note that a child for the purpose of intestacy laws includes only legal children—a child born to you or adopted by you. If you have a biological child who has been given up for adoption or for whom your parental rights have been terminated, that child can no longer inherit from you through intestacy laws (you can leave things to such a child in a will if you wish, however). Stepchildren do not inherit via intestacy laws.
If you do not leave behind a spouse or children, state laws generally leave your assets to your other relatives in this order of priority:
- Your grandchildren
- Your parents
- Your siblings; if they are deceased, then your nieces and nephews
- Your grandparents; if they are deceased, then to your aunts and uncles
- Relatives of your deceased spouse
If no relatives can be found, the estate goes to the state. Laws usually state that if someone who would inherit from you has died (for example, your brother), that person’s own heirs will inherit in their place (your brother’s children would split his share; if his children are deceased, his grandchildren would get his share).
Who gets left out
Intestate succession laws pass assets to your legal and blood relatives, which would exclude longtime friends, stepchildren and charities. It’s also important to understand that when your assets are distributed through intestacy, the focus is on dividing them accordingly so everyone gets his own established percentage, and not on giving items to people who may most appreciate or enjoy them. If you create a will, you get to decide exactly who gets which items.
Additionally, people who would normally inherit under intestacy rules can be barred if they have committed a crime against the deceased or who abandoned or abused a child who is now deceased that they would normally inherit from.
Who will care for your child
If you die and leave behind a minor child who has no other parent or legal guardian, it will be up to the court to select a guardian, based on what is in the best interest of the child. This is often one of the most compelling reasons to make a will, so that you can choose a guardian of your choice.
Intestacy laws are established to distribute assets to the closest possible relatives when someone dies without a will. Understanding these laws can help you decide if you feel it is necessary to make a will.
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