This is one of the most common questions asked around the idea of wills. I’ve heard numbers all over the board. Some saying that 1 in 4 people currently don’t have a will. I’ve also heard 1 in 3, and recently heard a statistic that 300,000 people die without a will every year in Britain.
Now, I can’t vouch for the truth of these stats, there is one stat that I did find: according to Harris Interactive® for Martindale-Hubbell® conducted a research study finding that for the last three years, 55% of all adult Americans do not have a will. And you know what is also true about that? That's way more people that die without a will each year than really should.
Given the relative ease of creating a will, and new ways (like low-cost online services) that make it less expensive, creating a will has never been easier. This is one of those financial things that, with a little education, most people could exercise control over.
So What Happens if You Die Without a Will?
First, let’s understand what it means to die without a will. To die without a will, the legal term refers to dying “intestate”, which means that you didn’t have a will drafted before you died, or your will doesn’t meet the requirements of the state law that you’re residing. When dying without a will, almost everything is subject to probate. In a previous blog post, I had interviewed a local estate attorney, Carey Gill, and this was her remarks regarding what really happens when you die without a will,
“While probate is usually the standard, you may also pass $100,000 with a small estate affidavit with or without a will”.
Probate allows for clean titling of your assets to go directly to your next of kin. One potential downside of probate is that your matters are made public and anybody is allowed to make a claim against your property. Another way of looking at probate is that basically everything that you have left over, you are leaving subject to your state government’s laws and regulations to determine how you wanted your property distributed. So, if you are comfortable having the state determine how your assets get split up, then probate might be okay for you. That still doesn’t mean you shouldn’t have a will.
What Does a Will Really Do?
Many people don't seek out getting a will drafted because they don't understand what it really does or they think it's only necessary for people with tons of money – not the case! Here are the 3 main functions that a will allows you to do:
- It allows you to give away your property that you own in your name the way that you want to.
- It allows you to nominate an executor to take care of all of your last affairs as far as paying bills, et cetera,
- It allows you to nominate a guardian for your minor children.
Of course, if you do not have a will, then none of these will be accomplished in the way that you will see fit and will be subject to your state laws and regulations.
What are Some Repercussions of Dying Intestate Between States?
Between different states, there are different rules, although many stick to a loose sense of how money should be distributed. Additionally, your marital status, and whether you have children or not (also how many children you have) affect where your belongings go.
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If you’re married and have children, often the money is split up into half between your spouse and children. Often the spouse will get one third to one half of the total sum, and the rest is split among the children. This is usually done regardless of the age of the children. So if you have a child who is 15 and another who is 30, they’re probably going to end up with the same amount.
If you’re married but you don’t have children, your spouse gets about the same amount as if you did have children (one third to one half). The difference is that the remainder often goes to the parents of the deceased. If the deceased has no remaining parents, the siblings of the deceased share the money equally among them. It’s interesting to note that even half siblings receive a share, no different than siblings that come from the same set of parents.
If you’re single but have children, the law tends to be very clear. The entirety of the sum often goes to the children, who split it evenly. Usually there’s no provision for the other parent of the deceased’s children. This is one of the more frustrating aspects of the law for people who have been in long term relationships, yet remain unmarried. No matter whether they have had children or not, the state almost always regards them as single entities.
If you’re single and have no children, your possessions usually go to your parents. If they are deceased, property is typically split evenly among any siblings you have. The same rule of half-siblings being treated the same as full siblings tends to apply.
What About Other Circumstances
Family circumstances can be extremely complex, and the explanations above are not meant to cover every person in every state (or country). There are frequently extenuating circumstances that make each probate case a little more finicky.
For cases outside the above stated circumstances, there are clauses that suggest money should go to grandparents, aunts and uncles, children of a deceased spouse, relatives of a deceased spouse, and finally to the state you were considered a legal resident of.
Do You Really Need a Will?
Hello? Did you not just read the post? Listen, from my experience it's not worth leaving your estate up to chance or the courts. Probate isn't the four letter word that many people claim it is, but you still don't want to put your family in a situation that could potentially haunt them and make your passing that much more complicated. Seek the counsel of a qualified attorney and get your will drafted.