Everyone knows that you should have a will before you pass away. But what happens if you don’t have one? What if you never get around to writing a will, or you’ve got an elderly parent or loved one who’s either forgotten to write their will or it simply cannot be found?
In this post, we’ll explore what actually happens when you die without a will, who decides what will happen next, and how your property is ultimately distributed without a will to establish your last wishes.
What Happens When You Die Without a Will?
The first thing to know about dying without some kind of will is that you’ll be what’s called “intestate”. That means it will now be up to the courts to decide how your property should be divided up and who it should go to. In other words, the courts will write your will for you.
Intestacy laws will vary from state to state. But generally speaking, your assets will go to a surviving spouse, your children, or any remaining family members. Here are how some of the common intestate succession scenarios that will usually apply:
If you’re single with children, then your estate will be split evenly between your children. If any of your children have died before you, then the deceased child’s share will to their children (your grandchildren).
If you don't have any children but both of your parents are still alive, then your entire estate will go to your parents. If you don't have any kids and only one parent is still alive, your estate will be split evenly between the surviving parent and your siblings (including half-siblings).
If you’re without children, and your parents as well as your siblings are deceased, then the estate will go to your nieces and nephews. If there are no nieces and nephews, then half of your estate will go to any living relatives on your mother’s side and the other half will go to the relatives on your father’s side.
Usually, if you’re married, your entire estate will go to your surviving spouse. This is because the assets you’ve purchased together are considered to be community property – items you both own equally.
If the two of you had children, then your estate should still pass on to your surviving spouse. However, if you had children from another spouse or partner, then up to one-half of your estate would go to the surviving spouse while the remainder would go to your other children.
Dying intestate can be bad news for those people with domestic partners. Unfortunately, most intestacy laws do not recognize unmarried couples, and so therefore they have no right to any of the deceased person’s property. It will instead go to their other family and relatives.
If No Family Members Can Be Found
Unfortunately, if no one makes a claim to your property and there are no surviving family members that can be found, then your entire estate will become property of the state.
Why Is It a Bad Idea to Die Without a Will?
One of the major consequences of dying without a will is that you’ll have no say in who your assets will go to. The probate court will decide how your property should be split, and it will most likely not be how you would have wanted.
Even if you told someone verbally that you wanted them to have your property, the courts will not allow it without a valid will. This can be a problem, especially if you have family members that were counting on receiving an inheritance.
For example, let’s say you had a favorite granddaughter and would like to leave her money for college or a wedding. You also have two adult children, and one of them has become estranged due to a history of substance abuse problems. Unfortunately, if you pass away intestate, your granddaughter would never receive any of your money. It would be split between your two children, including the one with a substance abuse history.
How Dying Without a Will Negatively Impacts Your Family
There are many ways that dying without a will can cause problems for your surviving family members.
For starters, since your estate must pass through probate, it will remain open for several months so that creditors have the opportunity to come forward and make a claim. During this time, no assets can be distributed – even if you gave someone permission to do so while you were still alive. That means if you were planning on lending a family member some money or letting them stay at your house, they no longer will be allowed to do so.
Secondly, the intestate succession laws can create a lot of fighting in your family. Children, grandchildren, and siblings whom you haven’t spoken with in years (or that you may not even be on good terms with) may be suddenly entitled to substantial shares of your estate. That can lead to a lot of arguments and possibly result in lawsuits with one another.
Finally, and perhaps the most heartbreaking, is that without a will, your children or dependents will go to whoever the courts appoint as their new guardians. More than likely, this will not be a person that you would have chosen. It could even be a family member you feel is unfit or could be potentially abusive.
Consult an Attorney
If you suspect a loved one either has or will die intestate, it may be best to consult an estate planning lawyer and find out for certain what the local rules will be. A good lawyer will also be able to give you options for how you may be able to avoid some of these unfavorable situations.
Remember: All of these scenarios can be easily prevented by taking the time to simply create a will and designate who your property should go to and who should care for your loved ones.
Share Your Will with Others
If you’ve written a will, don’t hide it away in your filing cabinet or on your computer. Be sure that it’s known to your other family members and kept in a place that’s secure but easy to find.
The simplest way to share your will with others is to store a digital copy of it in an app like Pillar. Pillar lets you organize all of your important estate planning documents into one convenient place. Try Pillar for free for 14 days with absolutely no obligations.