By Mark Pierce, Esq.
Dying without a will, known as intestacy, leads to the distribution of assets following state-specific laws. Close relatives inherit assets based on a prescribed order, and the probate process becomes necessary. Alternatives to wills include trusts, holding companies, and small estate laws. A will is essential to ensure your wishes are respected, especially for intellectual property. Married or partnered individuals can benefit from intestate succession laws.
The passing of a loved one is never easy, but the overwhelming task and emotion can be even greater if they do not leave any plans for their assets.
Unfortunately, this is a common situation. According to Gallup's latest research, in 2021, 46% of adults in the United States had written a will while 54% — the majority — have not.
Not having a will can be unfortunate for many, but there are ways to navigate this situation. Procrastination and limited knowledge of legalities may lie at the root of why people go without a will. However, it pays to ensure that your loved one's assets are distributed regardless of whether a will has been left behind.
Intestate in wills refers to an individual dying without having made a valid will. This results in the assets of the deceased being distributed according to the laws of intestacy and a prescribed formula by state law.
Each state has intestate succession laws, which distribute assets to the closest living relatives in descending order of priority. The closest living relative can be anyone from a surviving spouse, children, parents, to siblings. If none of these individuals exist or are living, then the assets will go to more distant relatives such as grandparents, uncles, and aunts.
Probate is the court-supervised process of authenticating a deceased individual's will and distributing their assets according to its terms or in the best interest of the deceased if they didn’t already have a comprehensive living will. A living will avoids probate by allowing individuals to make detailed decisions about their end-of-life wishes in advance, including the distribution of property rights. Investments not listed in a will or an out-of-date will may be distributed according to intestacy law within the probate process.
Avoiding probate is often preferable because it can save time and money and reduce family conflict over the distribution of assets. Probate proceedings are within the public record, so preventing this situation helps keep matters private. Transferring assets via trusts or other arrangements outside of probate can also prevent excessive taxation or depletion of estate funds from fees connected with the process.
In certain situations that don’t involve a living will, probate may be avoided by using specific estate planning tools such as trusts or jointly titled assets. Additionally, some states have laws allowing small estates to be distributed without court involvement.
Trusts are legal agreements where one party (the trust maker) transfers assets to another party (the trustee). Trusts offer an alternative to living wills, allowing a trust maker's wishes regarding asset management to be carried out without the need for a will.
Asset protection trusts, domestic asset protection trusts, and other types of trusts can protect the trust maker's assets from creditors and ensure they are distributed to beneficiaries per the trust maker's instructions.
Trusts also allow the trust maker to provide instructions on how assets should be managed or invested during their lifetime and upon death. In addition, setting up a trust is usually more cost-effective than preparing a will.
If you're a resident of certain states, setting up an asset protection trust is critical to safeguarding your possessions from creditors. Those living in Wyoming, Delaware, Alaska, Nevada, and South Dakota have some of the most favorable asset protection statutes. Take the steps necessary now to ensure your assets are secure and distributed according to your wishes
Holding companies are an alternative to using a will for asset management. They are corporate entities that allow investors to own and control multiple subsidiaries without having to intermingle the assets of each.
Holding companies can help by allowing for better organization of assets, more efficient taxation, and legal protection of those investments. With the use of separate legal entities, investors can not only diversify their holdings but also control potential losses more effectively. This strategy helps protect the investor's wealth and pass it on to future generations.
If an individual passes without a will, their finances, such as banking accounts, investments, and stocks, will be distributed according to the laws of intestate succession. These laws vary from state to state and determine who inherits the deceased's estate without a valid will.
Intestate succession works by assigning specific relatives of the deceased the right to inherit particular assets or portions of the estate. The estate may pass to the state government if no living relative qualifies under these rules.
A dependent, typically a child or an elderly parent, relies on another person for financial support and care. If an individual dies without leaving a will, the court typically awards custody of their legal dependents to the closest living relative.
A guardian is appointed when no family members can provide custodial care and support for a grieving dependant. This individual acts as an essential lifeline, ensuring that the loved one of a deceased person still receives the protection they need during times of hardship.
One of the most challenging parts of dying without a will is the division of your estate and property. Individuals must create a valid legal will to ensure that their wishes are respected. If there is no will, readers should immediately contact an experienced attorney or estate planner who can help navigate the probate process and explain how assets will be divided among family members and other beneficiaries.
When creating an estate plan, you should also consider intellectual property, such as copyrights and trademarks. They will be divided similarly to physical assets, so creating a plan that addresses these items is crucial. Overlooking them could lead to a complicated court battle in the future.
Without proper instructions stating how assets should be distributed amongst family members or beneficiaries, court proceedings may become necessary to determine each person's share in a legal setting. This can become an almost labyrinthine journey that could put tremendous strain on those left behind.
To help ease this process, readers should encourage their family members to create a will that clearly outlines how property and assets should be divided among loved ones upon death. An updated and valid will can significantly reduce the stress and complexity of dividing assets after death.
As mentioned, if a person dies without making a will or succession plan, their closest relatives may inherit all their property. This doesn’t mean, however, that your spouse or partner may be completely powerless. For those married or in domestic partnerships at the time of death, there is an opportunity to provide financial security and legacy by allowing one's spouse or partner to benefit from the passing through intestate succession laws.
A prenuptial agreement can be an alternative way to hold assets and designate who will receive them without creating a trust. However, such arrangements must be made before marriage.
These are just a few possible outcomes that could result from dying without a will. Discussing your wishes with a qualified attorney or estate planner is vital to ensure your assets are distributed according to your desires. By consulting with them, you can establish a clear plan for the distribution of your assets, taking into account your unique circumstances, family dynamics, and financial considerations. This proactive approach not only provides peace of mind but also minimizes the potential for disputes among beneficiaries and ensures that your legacy is managed in a manner consistent with your wishes.