We all know we should have a will, but fewer than half of all adult Americans have one. So what happens if you die and don't have a will? Who gets your property? Who's in charge of administering your estate?
If you have a will, your will determines who receives your property when you die. If you don’t have a will, your property will be distributed according to state law, by what is essentially a will that the state has written for you.
Every state has laws called “intestacy statutes” that govern the distribution of a a person’s property when that person dies without a will specifying who should receive that property. (The person who has died is called the decedent.) The intestacy statutes are designed to ensure the distribution that the legislature thinks most people would want- in general, a decedent’s assets will go to a surviving spouse and children, though the distributions vary from state to state.
State law will also determine who is appointed to administer your estate- generally your next of kin, such as a surviving spouse or eldest child (as long as the child is an adult).
Intestacy statutes do achieve their goal- they ensure that all property has an owner. (A person who has died cannot own property- there’s no dead hand control in property law, as all law students learn- hence the need for a procedure to pass that property to someone else. Of course, we use trusts to try to get around that.)
However, allowing the intestacy statutes to control the distribution of your property after your death is not a great option. I’ve listed a few of the reasons below.
Lack of Flexibility
The statutes are completely inflexible- so if you have a friend or charity you’d like to leave money to, or a stepchild you consider to be your own even though you’d never formally adopted them, or a live-in partner to whom you are not married, the statutes aren’t going to reflect your wishes. Lawmakers have not caught up with the changes in modern society, and it’s hard to see how the law could account for the legal informality of many people’s lives today, whether it’s long-term relationships outside of marriage or the informal family of friends many people build after moving far from their birth family for work or school.
Lack of Power
Even if you have a traditional family structure and the intestacy statutes more or less do what you’d want done, the statutes are much less powerful than a will. When you write a will with a lawyer, the lawyer will ensure that there are provisions allowing for the quickest and most efficient probate proceeding possible in your situation. Relying on the intestacy statutes doesn’t do that.
Even very basic estate planning, if done properly, will ensure that your estate is as streamlined as possible, so that the cost of administering it after your death is minimized. As I always tell clients- the estate plan has to be done either before or after you die, and it’s much cheaper- and much better- for you to do it yourself.
Finally, and perhaps most important of all, there is the distress your family will feel if they are forced to distribute your property according to state law. They may know that the law does not reflect your wishes and not be able to do anything about it; they may also be distressed because they do not know what you would have wanted and it’s too late for them to find out. Estate planning is about more than just passing on your property- it’s about ensuring that your family and loved ones do not carry an additional and unnecessary burden when they are already grieving.