Most people know they need a will. And many of them fully intend on writing a will … someday. But life is busy and the will keeps getting put off. Eventually, someday becomes never. In fact, nearly half of American adults will die without a will in place. So what happens if you die without one?
The Legislature Writes Your Will
Your state’s legislature has passed laws that dictate who will get the property of someone who dies without a valid will. These are called the laws of “intestate succession.” (“Testament” is simply another name for a will. If you die without a will, you are said to have died “intestate”—that is, without a testament.)
The laws of intestate succession generally give your property to your heirs at law – your nearest family members. If you leave a spouse and children (or grandchildren), your property will usually be divided among them. If you die without children, some of your property will probably be given to your parents, siblings, nieces, or nephews. Different states use different percentages for dividing the property. If you don’t leave any close family members, your property may be divided among more extended family, such as grandparents, aunts, uncles, and cousins. In the rare situation where you don’t have any close-enough blood relatives alive when you die, the state government gets to have your property.
As an example, suppose that you live in California and your only close family members are your spouse and your sister. Under California law, if you die without a will, your spouse will get half your property and your sister will get the other half. But if you leave behind your spouse and three children, then your spouse will get one third (yes, one-third, not one-half) of your property, and your children will equally divide the rest. (This doesn’t include things that you and your spouse owned together; in California, your spouse gets to keep all of those.)
Without a will, you also have no control over what happens to your family heirlooms or other special items. In a will, for example, you can leave your wedding ring to your daughter, or your coin collection to your brother. But without a will, all those special things may end up being sold so that the money can be divided among your heirs.
A Judge Chooses the Guardian for Your Children
If you have young children, maybe the most important part of your will is naming someone to be their guardian, in case both you and your children’s other parent die.
It always takes a court order to appoint a guardian. But the judge (in theory) will appoint the person you name in your will unless there are serious reasons not to (for example, if the person has been convicted of child abuse). If you die without a will, however, and haven’t named a guardian, the judge will have to choose someone without your input. (Keep in mind, appointing a guardian in only a will still guarantee that you will end up in probate court, which is a horrible idea to begin with).
As careful and caring as the judge may be, he or she doesn’t know your children or what you would decide for them. The judge may make a decision that you would never make yourself. And if a guardian has to be named, he or she will become the most important person in your children’s lives, helping them overcome the tragedy of losing their parents and influencing them to go on to lead happy, productive lives. Do you really want to leave that decision up to a complete stranger?
A will is not as good as a trust, but if you have a will, you’re one step in the right direction.
We would love to empower you to legally protect and financially provide for your family, no matter what the future holds. Call KCKW Law today to ensure your family is well taken care of.