Estate planning is something most people know is important but it's often something that they put off for a later date, likely because it brings with it unpleasant thoughts about disability and death, but also because of misconceptions about what happens if you die without a will. Some people think that if they die without a will their property will automatically pass to their spouse, which is what many people want, and for that reason they don't think a will is necessary. Others think that if they don't have a will the state will take all of their property. Both of these scenarios are usually not true.
The reason a will is so important is that it allows you to do two very important things: (1) decide what happens to your property, and (2) decide who is in charge of managing your estate.
What Happens to Your Property Without a Will?
If you don't have a will your property which is subject to probate will pass "intestate." Probate property does not include insurance policies, pensions or property owned as "joint tenants." If you die without a will, the law decides who gets your real and personal property rather than you.
If you die without a will the law will distribute property that is subject to probate as follows:
- If you die married and all of your children are from your spouse, your spouse will get $30,000 in property plus half of the remaining estate, if any. Your children will split the remaining property in equal shares.
- If you die married with children that are from someone other than your surviving spouse, your spouse gets half and your children split the remaining half in equal shares.
- If you die married with no children but surviving parents, your spouse will receive $30,000 in property and one half of the remaining estate and your parents will receive the other half.
- If you die unmarried with children, your children will split your entire estate in equal shares.
- If you die with no spouse and no children, your property will pass to your parents if living, and if they are deceased, your brothers and sisters and their children.
Things to consider about the consequences of having your property distributed as intestate:
- The law does not recognize step-children as “children” if you die without a will, so if you would like to leave something to a step-child you will need a will.
- If you die without a will your children will receive equal shares, therefore, if you want your children to receive unequal shares (or none) you will need a will.
- If you would like your surviving spouse to inherit all of your property you need to make a will. It is very common for couples to prefer to leave all of their property to a surviving spouse and for their children to receive the property after both spouses have passed on.
- If you die without a will, all of your property will pass to family members. If would like to donate any portion of your estate to charity or someone other than an immediate family member, you will need a will.
- If you die without a will, the law divides your property in shares, meaning specific items are sorted out or sold by a personal representative. If you would like to leave a specific item to a relative, such as something of sentimental value to that person, you need to create a will.
- Many people like to leave money to their grandchildren, for things like college or a home purchase. If you die without a will your grandchildren will not receive any property directly from your estate, unless their parents (your children) have passed away. If you make a will, however, you can place property in trust, leaving them property upon obtaining a certain age such as 21 or 25. If you don’t have a will, property will pass to your children outright and grandchildren may receive nothing down the road.
Who Will Manage Your Estate If You Don't Have a Will?
If you don’t have a will someone will have to go to court and petition to be your personal representative. The law has a preferred order for who will administer an estate, which means among other things, distributing the property and paying any taxes. Although the law has a procedure if you don't have a will to name a personal representative, it leaves surviving family members with more hoops to jump through and an opportunity for disputes among family members about who will be in charge of the estate.
If you have a will, you can name your executor and backup executors in case the person you name either can’t do it, or doesn’t want to. This will eliminate the opportunity for disputes between family members about who is in charge of your estate and will make it easier to manage your estate. You should also remember that the law's preferred order may not be your preferred order, and without a will someone you wouldn't have chosen will be in charge of your estate.
Why You Should Plan Ahead
By meeting with an attorney and planning your will, you can choose what happens to your property and who is in charge of your estate. The great thing about a will is that it can be as simple or as complicated as it needs to be to meet your objectives. Those who opt for simple estate planning can be assured that drafting a will and other estate planning documents is a quick and easy process that will ensure objectives are carried out. For those who need a more complicated will, they will have peace of mind that their wishes are being exactly carried out as they want. But the key is planning while you know you can. It's important for young people and older people alike to make a will, because you never know what will happen and making a will is the only way to ensure that your wishes are carried out.
Derek Dissinger is an attorney at Russell, Krafft & Gruber, LLP in Lancaster, Pennsylvania. He received his law degree from Duquesne University School of Law and practices in a variety of areas including Estate Planning.