The Law in Your Life

Estate Planning

What Happens if I Don't Have a Will?

Having a valid will, but not engaging in proper estate planning, usually ends up costing your estate several years in probate court and several thousands of dollars in expenses and fees. Certainly this is bad enough.

Not having a will creates an even worse situation where your estate is guaranteed to spend several years in court and spend several thousands of dollars in legal fees, but also you may have no idea how your estate will be distributed and whether your heirs will ever receive any part of the estate you wanted them to have before you died. [Also, you should know that the legal effect of having a will prepared only to have it declared invalid leaves you in the same position as not having a will at all.]

When you do not have a will, the laws of the state which govern how an estate should be distributed will come into effect. These are typically called the "laws of intestacy" and will show a judge presiding over a probate proceeding how to divide your estate, and who receives what. In many instances, these laws mirror what you want. For example, if you have a small estate and you are legally married to your spouse with no children, many states will award some or all of your assets to your spouse. If you have a spouse and one child, the state laws generally provide for some division in your estate between the spouse and your child. Even this simple statutory mandate, if it is present in your state, can cause huge problems.

For example, assume that you have been married for 20 years and you and your spouse have lived in your house for all that time. You have no other assets, except maybe some furniture or personal belongings. Then assume that your only child is going through an unruly teenage phase. Under some jurisdictions, if you were to die, the house may have to be sold and the money from the sale divided, depending on state law, between the minor child and the spouse. This, of course, is generally the last thing you actually desired, since your spouse may be displaced, he or she may not have enough money to purchase a new house, and part of the cash of your estate just went into an account for your minor son, who on the day he turns 18 can spend the entire amount.

Indeed, there are a number of similar "horror stories" where people either failed to make a will, or made one but it was invalid, and their estate went to persons or relatives who were never intended to receive a dime, often to the exclusion of their loved ones.

Please note that there are many variations on state laws and some states have protections which result in different distributions. But the point should not be lost. Without a will, you may have no idea what will happen to your estate or your family, and worse, the exact opposite of what you intended may happen.

Estate Planning
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