Most people know they need a will. And many of them fully intend on writing a will … someday. But life is busy and the will keeps getting put off. Eventually, someday becomes never.. In fact, nearly half of American adults will die without a will in place. So what happens if you die without one?
The Legislature Writes Your Will
Your state’s legislature has passed laws that dictate who will get the property of someone who dies without a valid will. These are called the laws of “intestate succession.” (“Testament” is simply another name for a will. If you die without a will, you are said to have died “intestate”—that is, without a testament.)
The laws of intestate succession generally give your property to your heirs at law - your nearest family members. If you leave a spouse and children (or grandchildren), your property will usually be divided among them. If you die without children, some of your property will probably be given to your parents, siblings, nieces, or nephews. Different states use different percentages for dividing the property. If you don’t leave any close family members, your property may be divided among more extended family, such as grandparents, aunts, uncles, and cousins. In the rare situation where you don’t have any close-enough blood relatives alive when you die, the state government gets to have your property.
As an example, suppose that you live in California and your only close family members are your spouse and your sister. Under California law, if you die without a will, your spouse will get all of your property. But if you leave behind your spouse and three children, then your spouse will get one third of your property, and your children will equally divide the rest.
Without a will, you also have no control over what happens to your family heirlooms or other special items. In a will, for example, you can leave your wedding ring to your daughter, or your coin collection to your brother. But without a will, all those special things may end up being sold so that the money can be divided among your heirs.
If you die in California with assets that do not pass automatically (like life insurance or joint tenancy assets) and your assets exceed $150,000, your assets will be subject to probate whether you have a will or not.
A Judge Chooses the Guardian for Your Children
If you have young children, maybe the most important part of your will is naming someone to be their guardian, in case both you and your children’s other parent die.
It always takes a court order to appoint a guardian. But the judge will appoint the person you name in your will, unless there are serious reasons not to (for example, if the person has been convicted of child abuse). If you die without a will, however, and haven’t named a guardian, the judge will have to choose someone without your input.
As careful and caring as the judge may be, he or she doesn’t know your children or what you would decide for them. The judge may make a decision that you would never make yourself. And if a guardian has to be named, he or she will become the most important person in your children’s lives, helping them overcome the tragedy of losing their parents and influencing them to go on to lead happy, productive lives. Do you really want to leave that decision up to a complete stranger?
With help from a qualified estate planning attorney, writing a will can be easier than you may think. We would love to empower you to legally protect and financially provide for your family, no matter what the future holds. Call today to ensure your family is well taken care of.
One of the main goals of our law practice is to help families like yours plan for the safe, successful transfer of wealth to the next generation. Call our office today to schedule a time for us to sit down and talk about your estate plan, where we can identify the best strategies for you and your family to ensure your legacy of love and financial security. Our office is located in Santa Ana, CA but we serve all of California including Irvine, Orange, Tustin, Newport Beach, and Anaheim.