Surveys consistently show that a majority of American adults have no will.
Some assume they’re too young, others that they don’t own enough to bother,
and many simply never get around to it. But here’s what every adult should
understand: if you die without a will, you don’t avoid having an estate plan.
You just get the one your state wrote for you — and it may look nothing like
what you would have chosen.
Intestacy: The State’s Default Plan
Dying without a valid will is called dying “intestate.” When that happens,
your state’s intestacy statutes determine who inherits your property. These
laws follow a strict family-tree formula, typically prioritizing a surviving
spouse and children, then parents, then siblings, and outward from there to
more distant relatives.
The formula is mechanical. It does not consider the quality of your
relationships, promises you made, or what you would have wanted. It simply
applies the statute.
Who Gets Left Out
The rigid nature of intestacy law creates painful — and sometimes shocking —
outcomes:
Unmarried partners receive nothing. No matter how long you’ve
been together, intestacy laws in most states recognize only legal spouses. A
devoted partner of decades can be left without the home you shared.
Stepchildren are usually excluded. Unless legally adopted,
the stepchildren you helped raise generally have no claim under intestacy
statutes.
Close friends and charities get nothing. The causes and
people you care about most have no place in the statutory formula.
Blended families face complications. In many states, when a
person dies leaving a spouse and children from a prior relationship, the
estate is split between them in ways that can force the sale of a family home
or pit a surviving spouse against stepchildren.
Estranged relatives may inherit. The formula doesn’t know
that you haven’t spoken to a sibling in twenty years. If the statute points to
them, they inherit.
It’s Not Just About Who Inherits
Dying intestate creates problems beyond the distribution of property.
A court chooses your estate’s administrator. Instead of an
executor you trusted and selected, a judge appoints someone — and family
members may compete for (or fight over) the role.
A judge chooses your children’s guardian. This may be the
most serious consequence of all. Without a will nominating a guardian, a court
decides who raises your minor children, guided by statutes and its own
judgment rather than your wishes.
The process often takes longer and costs more. Intestate
estates frequently require additional court proceedings, bonds, and
determinations of heirship, all of which add expense and delay while your
family waits.
Minor children may inherit outright. Without a trust or other
structure, a child’s inheritance is typically held under court supervision and
then handed over in full when they reach the age of majority — an age at which
few people are prepared to manage a windfall.
Some Assets Pass Outside Intestacy — But That’s Not a Plan
Certain assets bypass intestacy entirely: life insurance and retirement
accounts with named beneficiaries, jointly owned property with rights of
survivorship, and accounts with payable-on-death designations. While these
tools are valuable, relying on them alone is risky. Beneficiary designations
go stale, joint ownership can create unintended tax and creditor issues, and
anything without a designation still falls into the intestacy formula.
Take Back Control
The good news is that avoiding intestacy is straightforward. A properly
drafted will — ideally as part of a complete estate plan with powers of
attorney and healthcare directives — puts you back in charge of decisions that
are too important to leave to a statute.
Don’t let your state write your estate plan. Contact our office today to
schedule a consultation and put your wishes in writing.
This article is provided for general informational purposes only and does
not constitute legal advice. Intestacy laws vary significantly by state.
Please consult a qualified estate planning attorney about your specific
situation.