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what happens if you die without a will?

Updated: Nov 9, 2021

Most people know they should have a will but many never quite get around to getting it done, leaving the courts to decide who gets what.

It really does not matter the size of your assets, your marital status, or whether or not you have children, if you want a say in what happens to your property after your death, you need to articulate that in a will. Laws vary from state to state when someone who dies without a will (the legal term is intestacy) but the way states distribute property and assets follows a general pattern. As would be expected, the pattern of distributing property depends on whether you are married or single and whether you or your partner has any children. The least complicated scenario in dying without a will are people who are single without children and then single with children. But the state’s general formula may not be in accordance with your wishes.

For instance, suppose Joe is single and his parents are still alive. And suppose he has a favorite niece he wants to leave money to for her education. If Joe dies without specifying those wishes in a will, his estate would go to his parents because he is single with no children. Even if his parents predecease him, then any property and assets would go to siblings or next closest kin. That may or may not include the niece. And even if he made his wishes known, the family may choose to abide by those wishes – or not. Whoever inherits the money may use it as they wish. The only way for Joe to pass that money to his niece is to articulate that in his will.

Here’s another example: say Esther is single with two children. If she dies without a will, her estate would be split equally between her children. This may be what most people prefer, but suppose Esther is inclined to leave more money to her daughter because she is a single parent with three young children while her son is already doing quite well. In order to honor her intentions, she needs to make them clear in her will. Without one, Esther’s estate will simply be evenly and her grandchildren may not benefit the way she intended.

If you are married and die without a will, it becomes more complicated. The states vary widely in how they handle distributing assets, but remember they do so only with general plans that do not fit every situation.

Some give the surviving spouse everything. That may make sense or it could be disastrous in the case of a second marriage where children are involved. Some states divide assets between a surviving spouse and the rest divided between the children. For those with no children, assets typically go to the surviving spouse or divided between the surviving spouse and the deceased’s parents. And in the event the parents are also deceased, the estate would generally be split among any siblings of the deceased.

The bottom line is the only way to make sure your wishes are carried out as it relates to what happens to your property after your death is to write a will. And if you already have a will but you’ve experienced major changes (marriages, divorces, births, deaths), you may need to review your will and make revisions and changes.

Don’t say you’ll get around to it. Make an appointment today.

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