Responsible estate planning requires that you think about what will happen to your estate and your loved ones after you are gone. If one dies without a will in the United States, the state laws of intestate succession dictate what happens to the person’s estate. Having a will allows you to make sure your wishes for the distribution of your property are carried out.
What Is a Will?
Barron’s Law Dictionary defines a will as a legal document in which a person, called the testator, formally declares how his or her property should be disposed of after death. Some important characteristics of a will are that it is revocable during the lifetime of the testator, and it is not operative (that is, it does not take effect) until after the testator dies. This means a will may be changed at any time before the testator dies.
What Happens When a Person Dies Without a Will?
When a person dies without a will in the United States, his or her property passes according to the state laws of intestate succession. All states in the U.S. have statutory schemes that dictate how a decedent’s property will be passed along to heirs when the decedent dies without a will.
According to Dennis R. Hower, author of Wills, Trusts, and Estate Administration for the Paralegal, intestate succession laws vary by state, but in general they:
- Determine the identity of heirs.
- Set forth the rights of family members.
- Establish guardianship for minor children.
The laws of intestate succession also contain procedures for:
- The administration of the estate,
- The appointment of the personal representative or administrator, and
- The disposition of the estate property to the surviving spouse and blood relatives of the decedent.
Thus, when someone dies without a will, the laws of intestate succession take over and determine what happens to the person’s property. As one can easily see, unfortunately, this may not necessarily conform to the decedent’s wishes.
Why Have a Will?
Although the state laws of intestate succession provide a clear way for the probate court to dispose of a decedent’s property in the absence of a will, as stated, these laws may not reflect the wishes of the decedent. Accordingly, one of the main reasons to have a will is to make sure one’s wishes are carried out.
Authors Gordon Brown and Scott Myers in Administration of Wills, Trusts and Estates, point out that having a will allows you to:
- Select the people or institutions that will inherit from your estate.
- Name a guardian or guardians for your minor children.
- Choose who will be the personal representative or administrator of your estate.
- Determine the source from which taxes and other debts of the estate will be paid.
- Appropriately provide for your surviving family members.
- Use the will as an opportunity to pre-plan your funeral and burial.
- Leave property to others in trust.
These are just a few of the advantages of having a will. Although many estate planning experts will properly advise clients to convert various assets into nonprobate property, a will is still necessary to give full effect to the decedent’s final wishes.
Sources:
- Brown, Gordon and Scott Myers, Administration of Wills, Trusts and Estates. (4th ed.) N.Y.: Delmar Cengage, 2009.
- Gifis, Steven H., Barron’s Law Dictionary. N.Y.: Barron’s, 1996.
- Hower, Dennis R. Wills, Trusts, and Estate Administration for the Paralegal. St. Paul: West, 1996.
Disclaimer: This article is in no way intended as legal advice. For help with specific legal issues, one should contact a licensed attorney in one’s local area.
Jessie Vanwinkle - Jessie Vanwinkle is an attorney in practice since 1998. View her full profile for more information.
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