You know you should get a will. But it seems like life never slows down enough to get it done. With oil changes and grocery store runs and everything in between, creating a will gets pushed to the bottom of the to-do list. (Below dental cleanings!)
Here’s the kicker though. Dying without a will can cause serious problems for your loved ones after you pass away. We’re talking about tons of probate court red tape, ridiculous administrative costs, and bitter arguments between friends and family.
Let’s go over exactly how dying without a will (aka intestate succession) affects loved ones after you pass away and—more importantly—how to keep the ball in your court instead of probate court.
- What Is Intestate Succession?
- What Happens if You Die Without a Will?
- State Intestacy Laws
- How Dying Without a Will Affects Your Family
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1. What Is Intestate Succession?
In plain language, intestate succession (aka intestacy) is what happens when you die without a valid will in place and your state’s probate court decides who gets your stuff and in what order. It’s the ultimate way to add insult to injury.
The biggest downside of intestate succession is that your loved ones could be in for a long and expensive battle with the legal system to prove what they think you would have wanted. Don’t let this happen!
Here's a breakdown of the core terms you need to know to fully understand intestate succession and how it could affect the people you love.
If you need an easy way to remember what intestate means, we’ve got you. Break intestate down into two words so you can answer the question, What does testate mean? Dying testate basically means you made a valid will before you passed away, which gave you the chance to choose who gets your stuff.
In-testate, on the other hand, means you didn’t make a valid will before you died, and your assets are distributed according to state intestacy laws.
Now the next part of the phrase. What does succession mean?
Succession just means when you give your stuff away in a certain order.
Let’s apply that idea to dying without a will. Intestate succession is the order your state’s probate court uses to distribute your property when you die without a will. For example, your state’s order could be your spouse, then your children, then your siblings.
2. What Happens if You Die Without a Will?
Each state has its own intestate succession laws, so not every situation is the same. In most cases though, when the courts decide your estate is intestate, your surviving spouse gets the difficult job of giving away your assets. That means they get to tell everyone else how much, if anything, they’ll get. Sound stressful? It is!
If nobody’s willing to handle your estate, the courts name a public trustee. This total stranger will distribute your assets according to the laws in your state. And that usually leaves everybody unhappy.
Let’s walk through some typical scenarios.
If You’re Single
If you’re single without kids and you die without making a will, your parents will likely inherit your entire estate. If you have any assets (car, condo, etc.), those items will be used to pay off any debt you have, like student loans.
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If one of your parents has already passed away, your stuff will be divided among the surviving parent and any siblings—even if you don’t have a great relationship with any of them. And if you have a pet, your immediate family will decide what happens to it.
Here’s an example.
Meet Jamie, a 36-year-old single woman with no kids and one cat. She doesn’t get along with her sister Jill but has a great relationship with Jill’s teenage daughter, Amy. Jamie has promised to help Amy pay for her college degree.
If Jamie draws up a will, she can decide exactly where she wants her money to go. She can give Amy her entire estate, or she can give Amy a percentage of her assets and have the rest go to other people or charities she chooses. Jamie can even leave her cat to a friend. That’s the advantage of having a will. It’s huge.
But if Jamie passes away without a will in place? Her estate would be divided between her parents and her sister. There’s no guarantee Amy would get a penny. And the pet? Hopefully, one of her family members likes cats.
If You Have Children
Typically, if you have children and die without a will in place, your children will receive an intestate share of your assets. The amount of that intestate share depends on your state’s intestacy laws.
There’s more. If you have a blended family, grandchildren, adopted children or foster children, the order of succession gets fuzzier. And yep—you guessed it—each state handles those scenarios differently.
If You’re Married
If you’re married and die without a will, your estate will go to your surviving spouse if you both own it. Legally, it’s called community property.
Now, if you have separate property, it’ll likely be split among your surviving spouse, children, siblings and parents. Things get more confusing if you’re divorced and remarried and have children from both marriages.
Here’s an example. Frank is married with three children and lives in New York. If he passes away without a will, the law says his surviving spouse will inherit the first $50,000 of his personal assets (not any shared assets) plus half the remaining balance. The rest would be divided equally among Frank’s children.
If Frank lived in Tennessee, his wife would receive one-third of the estate and the rest would be given to the children in equal amounts. If Frank had stepchildren, neither New York nor Tennessee would recognize them as valid heirs, even if he has raised them as his own.
This just goes to show how complicated—and stressful—things can get for your loved ones if you pass away without a will in place.
3. State Intestacy Laws
Hopefully, we’ve made it clear by now that each state has its own laws of intestacy. There are some common rules, but never assume that what’s true in one state will be true in others.
First, the common rules. Generally speaking, if you die without a will, the order of succession usually goes something like this:
- Your spouse
- Your children
- Your parents
- Your siblings
- Your grandparents
- Your next of kin
- The state
But like we mentioned, intestacy laws vary from state to state and can change all the time. One of the least expensive ways (aka without a lawyer) to find out the order of intestate succession for your state, is to Google the name of your state followed by intestate succession. For example, California intestate succession.
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4. How Dying Without a Will Affects Your Family
Even though each state has their own version of intestate succession laws, one thing is consistent throughout: family heartache. If you die without a will, your loved ones will be dealing with the stress that comes with the uncertainty you left behind.
Think about it. Your family will be raw with grief after you pass. And unfortunately, people in grief can let their emotions get the best of them, causing hard feelings all around. Adding stress about who gets what almost always adds more tension.
But it doesn’t have to be like that.
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