Intestate Succession And The Importance Of Having A Will

A legally executed will ensures that the things you leave behind, including financial assets and property, are handled according to your wishes. It's not something you'd enjoy thinking about, but it has to be done if you want to be certain that the things you leave behind go to the people you love most.

Unfortunately, many people leave behind their families and loved ones without a will, leaving the task of disbursing assets up to the state. Learn more about what happens without a will and how having one best benefits your family after you've moved on.

What Happens If You Don't Have a Will

Dying without a will creates a condition known as dying "intestate," which impels the state to decide how your assets are distributed among your loved ones.

Without a will, the state has to step in and name an executor based on a list of eligible candidates. Surviving spouses and domestic partners are usually at the top of this list, followed by adult children and other family members. If you have no surviving family, it's likely that the state will assume complete control of any assets you've left behind.

Rules of Intestate Succession

Most states have their own stipulations on how property is distributed. However, the following offers a general guideline for determining who's eligible under intestate succession:

  • Spouses, registered domestic partners and blood relatives are eligible under intestate succession laws.
  • Unmarried partners (unless they fall under "common-law" in some states), friends and charities are not eligible.
  • Legally separated spouses and those who've begun divorce proceedings may or may not be considered surviving spouses, depending on a judge's ruling.
  • Direct descendants, including biological and adopted children are eligible. Most states do not include stepchildren or foster children. Children adopted by a stepparent may be eligible, depending on state laws.

If an eligible heir passes away shortly after you've passed, their offspring may be eligible to inherit what their parent would have received had they lived. In this case, most intestate succession laws require the heir to have outlived the deceased by a set period of time. Most states have adopted the Uniform Simultaneous Death Act, which handles instances where two or more people have passed simultaneously.

How Assets are Distributed under Intestate Succession

The amount of assets and property a spouse or domestic partner receives depends on a variety of factors:

  • If you left no children, your spouse or partner will likely receive all of your assets.
  • If you have children, then your assets will be divided among them and your surviving spouse or partner. In most cases, the spouse or partner receives the largest share of the assets.
  • If there's no surviving spouse or children, your assets may be rewarded to eligible relatives according to the rules of intestate succession.
  • If you have no spouse, children or other surviving relatives, the state assumes complete control of your assets.

The last point is perhaps one of the most important reasons why having a will is important. Without it, the state is free to do with your assets as it pleases, especially if you have no surviving family. That means if you have a favorite charity you want your assets to go to, but have no legally binding documents to affect that wish, then the state has no knowledge of (and even if it did, no obligation to follow) that wish on your behalf.

Many people assume that creating a will is a complicated, expensive and time-consuming task, which causes many people to forego having one made until it's too late. Fortunately, there are plenty of cost-effective and time-saving estate planning techniques to make your last wishes known to your family and the state.