What if you don’t have a Will?

July 06, 2022

Here in the United States, property passes by 2 forms: by title and by will.  Property with a qualified beneficiary or co-owner immediately passes as part of the property registration when an owner dies.  Property without title, or property without the ability to name a beneficiary, passes according to the directive from your will.

That raises an interesting question.  What if you don’t have a will?  What happens then?

The simple answer is that we all have a will.  Every single one of us.  You may not be the author of your own will or had any direction at all in how it was written, but you have a will.  The state you reside in at the time of your death gives you a will.  This will be your primary will and can only be voided if you write a will of your own.

You see, the state has something called intestacy law.  That law says simply that if you don’t have any other way to eliminate it, then they give you their state-written version.  What does that one do?  It applies an order of inheritance to your relatives.  Your spouse and children are given equal priority, meaning your spouse would inherit half of your estate and your children would split the other half.  If you have stepchildren, they’re excluded all together.  If you have no children, your spouse and parents could split your estate if your parents are still living.

The state-issued will continues on for a very long time full of “if, then” statements about who survives you.  Grandchildren, siblings, half-siblings, and so-on are addressed.  There is even a clause in this document that says  if you have no family when you die, the state becomes your beneficiary.

At the end of the day, if you die without a will, you have absolutely no control over what happens to your estate.  You can’t name the executor of your estate.  You can’t arrange for assets to protect your children.  You can’t name their guardian.  You can’t benefit your church or favorite charity.  You can’t even leave all your assets to your spouse unless you have no children and your parents are deceased. 

I get it.  Writing a will is acknowledging your own mortality.  It’s hard to think about.  Leaving assets to specific people can anger other people in your family.  You need to hire an attorney and pay money to help you write the document, then pay them again and again to amend it over the years.  There are a litany of reasons why writing a will can be emotionally, financially, or logistically difficult.

The proposed difficulties you face in writing a will pale in comparison to the mess you can leave by not writing one.  In my career, I’ve seen it happen first-hand more than once.  Confusion, frustration, even anger and alienation can arise.  Family members can sometimes never speak again after going through a difficult estate process.

If you write a clear and articulated will, you may not make every one of your heirs happy.  That’s not the point.  The point is that they won’t be upset with one another, as their role and their inheritance is clearly set by your last will and testament.  Everyone’s role is defined.  Don’t let a judge who has never met anyone in your family determine your children’s guardianship, or who takes over the family business, or force the sale of your farm.  Determine your legacy on your own.

Sit down with someone you trust.  It can be your spouse or your best friend or someone you know that has some experience in dealing with these things.  Talk through your ideas of what you want your legacy to be.  Make a list, even if it’s handwritten, of your priorities for your loved ones after you die.  Take that list to an estate planning attorney.  If you’re prepared, having an attorney help you draft your documents isn’t prohibitively expensive.  Make sure it’s signed and make sure that you have copies stored in more than one location in case one gets destroyed.  Every two or three years (ore more often if a large life even occurs), revisit the document to see if it needs updated.

The takeaway from this installment is simple.  Write a will.  It’s not as hard as you think.  It’s not as expensive as you think.  The alternative isn’t a very useful one.  Make your legacy one that YOU control.

This information is not intended to be a substitute for specific individualized tax or legal advice. We suggest that you discuss your specific situation with a qualified tax or legal advisor.