No one likes to think about their own passing, but failing to plan for the future can leave your loved ones in a difficult situation. If you die without a will or trust, your estate will be subject to intestacy laws, which determine how your assets are distributed. This process can be lengthy, costly, and may not reflect your actual wishes.
Understanding intestate succession and the risks of dying without an estate plan is crucial to protecting your family and ensuring that your assets go where you intend. Below, we'll break down intestacy laws, what happens to your assets, and why creating an estate plan is essential.
If you need help creating a will or trust, contact us by using our online form or calling 414-253-8500 for legal assistance.
What Is Intestacy?
Intestacy refers to the legal process that occurs when someone dies without a valid will or trust. Instead of the deceased person deciding where their assets go, state laws dictate the distribution of their estate.
Each state has its own intestacy laws, but in general:
- Spouses and children are first in line to inherit.
- If there are no immediate family members, assets may go to more distant relatives (such as siblings, nieces, or nephews).
- If no legal heirs are found, the estate may escheat to the state, meaning the government takes ownership.
Without an estate plan, you lose control over who inherits your assets and how they are distributed.
Who Inherits Under Intestate Succession?
1. Surviving Spouse and Children
In most states, if you die married with children, your spouse will receive a portion of your estate, while the rest is divided among your children. The exact split varies by state.
If you die without children, your spouse may inherit everything, or a portion may go to other relatives, depending on local laws.
2. Children Without a Surviving Spouse
If you are unmarried but have children, your estate is typically divided equally among them. If any of your children have passed away, their share may go to their own descendants.
3. No Spouse or Children
If you have no surviving spouse or children, your estate usually goes to the closest living relatives, such as:
- Parents
- Siblings
- Nieces and nephews
- Aunts, uncles, and cousins
4. No Identifiable Heirs
If no legal heirs can be found, the state takes ownership of your assets through a process called escheatment. This means the government keeps your property instead of it going to someone you may have wanted to inherit.
Table: Who Inherits Under Intestate Succession?
Each state has different intestacy laws, but the following table provides a general overview of how assets are distributed when someone dies without a will or trust.
| Family Situation | Who Inherits? | Notes |
|---|---|---|
|
Married, with children |
Spouse & children |
The exact split varies by state. Some states give a portion to the spouse and the rest to children. |
|
Married, no children |
Spouse |
In some states, the spouse inherits everything; in others, a portion goes to parents or siblings. |
|
Unmarried, with children |
Children |
The estate is divided equally among children. If a child has passed away, their share may go to their descendants. |
|
Unmarried, no children |
Parents |
If parents are deceased, inheritance passes to siblings. |
|
No immediate family (spouse, children, parents, or siblings) |
Extended family |
Inheritance goes to nieces, nephews, aunts, uncles, or cousins. |
|
No identifiable heirs |
The state |
The estate "escheats" to the government. |
Problems With Dying Without a Will or Trust
Dying intestate creates several potential problems for your loved ones:
1. Delays in Asset Distribution
Without a will or trust, your estate must go through probate, a court-supervised process to determine rightful heirs. This can take months or even years, leaving your family waiting for their inheritance.
2. Higher Legal Costs
The probate process involves court fees, attorney fees, and administrative costs, which can reduce the value of your estate. Having a will or trust helps minimize these expenses.
3. Family Disputes
Intestate succession laws may not align with family expectations, leading to conflicts. For example, if a partner or stepchild is not legally recognized as an heir, they could be left with nothing, even if you intended to support them.
4. No Control Over Guardianship for Minor Children
If you have minor children and die without a will, the court decides who will raise them. Your preferred guardian may not be chosen, creating instability for your children.
5. Unintended Beneficiaries
Intestacy laws distribute your assets based on legal relationships, not personal preferences. This means:
- A distant relative you barely knew could inherit your estate.
- A longtime partner may receive nothing if you were unmarried.
- Family members who mismanage money may receive large sums without restrictions.
How a Will or Trust Can Prevent Intestacy Issues
Creating a will or trust ensures that your assets are distributed according to your wishes and not dictated by state laws. Here's how these estate planning tools help:
1. Wills: Direct Your Assets and Appoint Guardians
A will is a legally binding document that:
- Specifies who should inherit your assets and in what proportion.
- Names an executor to manage your estate and oversee distributions.
- Appoints guardians for minor children, ensuring they are raised by someone you trust.
- Allows you to leave specific bequests to loved ones or charities.
While a will still goes through probate, it provides clear instructions, reducing delays, legal costs, and family disputes. Learn more about creating a will and how it can protect your loved ones.
2. Trusts: Avoid Probate and Maintain Control
A trust offers more control over your assets while avoiding probate. Some common trust options include:
- Revocable Living Trusts - Allow you to manage your assets during your lifetime and pass them directly to beneficiaries upon death. Learn more here.
- Irrevocable Trusts - Provide asset protection and may help minimize estate taxes. Read about them here.
- Testamentary Trusts - Created through a will to provide for minor children or dependents. Find out how they work.
- Special Needs Trusts - Protect inheritances for beneficiaries with disabilities without affecting government benefits. Explore special needs planning.
By using a trust, you can avoid probate, protect assets, and maintain privacy while ensuring your estate is distributed according to your exact wishes.
Table: Key Differences Between a Will and a Trust
| Feature | Will | Trust |
|---|---|---|
|
Avoids Probate? |
No, must go through probate. |
Yes, assets in a trust bypass probate. |
|
Effective When? |
After death. |
Upon creation and can be used during lifetime. |
|
Privacy? |
No, wills become public record. |
Yes, trusts remain private. |
|
Controls Asset Distribution? |
Yes, but requires probate. |
Yes, with more flexibility and control. |
|
Can Reduce Estate Taxes? |
Limited impact. |
Certain trusts can help minimize estate taxes. |
|
Appoints Guardian for Children? |
Yes. |
No, must be done through a will. |
|
Protects Against Incapacity? |
No, only applies after death. |
Yes, a trust can manage assets if the grantor becomes incapacitated. |
How to Create an Estate Plan and Protect Your Family
If you want to avoid the pitfalls of intestacy, estate planning is essential. Follow these steps to secure your legacy:
1. Draft a Will or Trust
Consult with an attorney to draft a legally sound will or trust based on your needs. Ensure it reflects your wishes and complies with state laws.
2. Name Beneficiaries
Designate beneficiaries on financial accounts, life insurance policies, and retirement plans. This ensures assets transfer directly to the intended recipients.
3. Establish Power of Attorney and Healthcare Directives
Protect yourself in case of incapacity by setting up:
- A financial power of attorney to allow someone to manage your assets. Learn more.
- A healthcare directive to specify medical preferences and name a healthcare agent. Read about it here.
4. Review and Update Your Plan Regularly
Life changes such as marriage, divorce, childbirth, or financial shifts may require updates to your estate plan. Regularly review your documents to ensure they remain accurate.
Contact an Estate Planning Attorney Today
If you die without a will or trust, your estate will be subject to state intestacy laws, potentially leading to unintended distributions, family disputes, and unnecessary legal costs. Creating a will or trust allows you to take control of your legacy, protect your loved ones, and ensure your wishes are honored.
At Heritage Law Office, we help clients navigate estate planning to avoid intestacy complications. Contact us today at 414-253-8500 or use our online form to schedule a consultation.
Frequently Asked Questions (FAQs)
1. What happens if I die without a will or trust?
If you die without a will or trust, your assets will be distributed according to state intestacy laws. This means your property will go to your closest legal relatives, such as your spouse, children, parents, or siblings. If no heirs can be found, your assets may escheat to the state, meaning the government takes ownership.
2. How long does the intestate probate process take?
The probate process for an intestate estate can take several months to years, depending on factors like estate complexity, number of heirs, and potential disputes. Without a clear estate plan, delays are common, and legal costs can significantly reduce the value of the estate.
3. Can my unmarried partner inherit my estate if I die without a will?
No, in most states, unmarried partners have no legal inheritance rights under intestacy laws. If you want your partner to inherit your assets, you must create a will or trust specifying them as a beneficiary.
4. Do stepchildren inherit if I die intestate?
Stepchildren generally do not inherit under intestacy laws unless they were legally adopted. If you wish for stepchildren to receive part of your estate, you must explicitly name them in a will or trust.
5. Can I prevent probate by naming beneficiaries on my accounts?
Yes, naming beneficiaries on financial accounts, life insurance policies, and retirement plans allows those assets to transfer directly to the named individuals without going through probate. However, for real estate and other assets, a trust may be necessary to avoid probate entirely.