NASE Blogs

What happens if I die without a will, i.e. intestate?

Wednesday, March 23, 2011

Every state has laws, called intestacy laws, which determine what happens to real and personal property in the event that an individual dies without a will that can be located and probated. Acting within the scope of intestacy laws a court will determine who will act as guardian if the decedent had minor children and might appoint a trustee to administer any substantial amount of assets left to those minor children. Intestacy laws do not recognize personal circumstances or personalities, nor in many cases, do they provide the judge who is applying them much latitude with respect to his decisions. In certain circumstances, in certain states, it is said that the state may benefit from your intestacy to a greater degree than your heirs although this is an unusual outcome.

The results of decisions and distributions by probate courts that are bound by state intestacy laws are often unsatisfactory since, of necessity, intestacy laws have been passed with a view to providing for a broad variety of non-specific circumstances. Intestacy laws often deal poorly with specific situations and may result in choices for guardianship or distribution of assets that are far different than the decedent would have chosen had he/she had the foresight and opportunity to plan for what may have been wholly-unexpected death. Intestacy laws typically leave a fixed percentage of a decedent’s estate to his or her spouse with the remainder divided equally among children other close relatives. Often this asset distribution makes it difficult for the survivors effectively and easily to manage assets for the benefit of the entire family and at times necessitates sale of valuable and sometimes income-producing assets that otherwise could have been retained. On the other hand a properly drawn will can provide for heirs in the fashion best suited to their individual situations and leave assets to a decedent’s spouse or heirs either outright or in a trust, allowing them to be managed more readily for the benefit of the entire family. In addition, federal estate tax and state inheritance tax planning may allow heirs to avoid substantial and draining tax payments and may allow them to keep valuable property and significant business interests that are crucial for livelihood and financial well-being. In short, nearly every married couple with minor children should have a Will prepared. In addition, any individual or couple having substantial assets, in addition to having a Will prepared, should consider planning with a view to avoiding federal estate and state inheritance taxes. Finally, many individuals consider charitable giving as a part of their overall estate plan.

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