Death is an inevitable part of the cycle of life. All of us understand on some level that we will eventually pass away, and that any possessions that we have will be distributed to others. But a surprisingly large number of people have not prepared, from a legal standpoint, for the eventuality of their passing. According to a recent survey by Caring.com, however, two-thirds of American adults don’t have a will.
So what happens if you die without a will? In this article, we’ll discuss the consequences and outcomes in more detail.
Table of Contents
- What Is A Will?
- What Happens When You Die Without A Will?
- What Is Probate?
- What Is Not Included In Intestacy?
- Who Receives Your Assets If You Die Without A Will?
- Do Domestic Partners Benefit If You Die Without A Will?
What is a Will?
In the simplest terms, a will is a legal document that details how you would like your property and possessions to be distributed after your death. Traditional wills, also referred to as testamentary wills, are the most common. These wills include specific language clearly stating that the person who is making the will has revoked any earlier versions of the document; they also appoint an executor (someone who will be in charge of ensuring that all of the terms of the will is met and the assets distributed according to the deceased’s wishes). Finally, testamentary wills are signed in front of witnesses.
What Happens When You Die Without a Will?
If you die intestate (the legal term for dying without a will), the specifics of how your assets are managed will depend on where your state of residence at the time of your death. Each state has its own intestacy laws, but the overall objective is basically the same: the dispersion of your assets to surviving beneficiaries through probate.
What is Probate?
Probate is the process by which a deceased person’s estate is administered, and occurs whether or not you die with a will (for the most part). If you have a will when you die, the probate process is in place to determine whether or not your will is valid (for example, confirming that it was created while you were of sound mind and not under duress). This is commonly referred to as “proving the will”. Once the will is proven to be valid, probate ensures that the wishes set forth within that will are properly executed.
If you die without a will, the first thing the probate court will do is appoint an administrator to be in charge of compiling and organizing all of your assets. This administrator is responsible for identifying, locating and dispersing your property to your legal heirs, based on the hierarchy of priority established in your state’s intestacy laws.
For more detailed information about the probate process, click here.
What is Not Included in Intestacy?
Not every aspect of your property is included in the probate process, regardless of whether or not you die with a will. Non-probate assets include living trusts, retirement plans and life insurance policies with named beneficiaries. Jointly owned real estate with rights already granted to survivors is not included in probate proceedings either.
Who Receives Your Assets if You Die Without a Will?
- The way that your property is distributed if you die intestate is largely dependent upon whether you are single or married, and if you have children. Specifics may vary depending on your state of residence, but the basics are generally the same.
- If you are single and do not have children, the entirety of your assets will be distributed to your parents. If one of your parents has predeceased you, then your assets will be split between the surviving parent and any siblings you have. If both of your parents are no longer living, your estate will be divided equally among your siblings.
- If your siblings have predeceased you, your assets are divided between their children (your nieces and nephews); if you don’t have any nieces and nephews, your estate is distributed to more distant relatives on both your parents’ sides.
- If you are single and have children, your children will inherit your estate. If any of your children have predeceased you, their children (your grandchildren) will inherit their parents’ share of your estate.
- If you are single and your probate administrator cannot identify any relatives, your assets will likely be ceded to your state of residence.If you are married and survived by a spouse, the spouse will receive your estate, assuming that you owned your assets jointly. If you did not own your assets jointly, then the estate will be divided between your spouse and any children you have. If you don’t have children, the estate will be distributed to your spouse, surviving siblings and parents.
Do Domestic Partners Benefit if You Die Without a Will?
Once again, this depends on the state in which you live and the intestacy laws specific to that state. If your state recognizes domestic partnerships, then your partner is entitled to some or all of your assets, depending on whether or not children are involved. Many states do not extend benefits to domestic partners, however, which is why it’s crucial for those who are in committed relationships but not married to make provisions for their loved one in the event of their passing.
There are many reasons why people avoid creating a will. They may feel as though they don’t have enough property to warrant it; they may worry that it will be expensive or time-consuming to prepare; or they may feel uncomfortable with the prospect of facing their mortality. But creating a will is a proactive step in ensuring that your wishes are respected and your loved ones are taken care of after your passing.
The information provided above is not meant to replace expert estate planning, tax, or financial advice. As you design your estate plan, please reach out to a qualified professional.
Do you have questions about creating an end-of-life checklist or any other issues relating to end-of-life preparations? Titan Casket is here to help you get the funeral you want at a fair price. Contact us in the chat window or here to get started.