It’s a question I get often. Why would you want to hire an attorney and contemplate your own demise if you don’t have to? The decision regarding if, how and when to enact an estate plan is personal to everyone. But, you may be doing your loved ones a great disservice if you leave things up to chance. This article will go over the basics of what happens if you die without an estate plan and also outline some situations where the consequences can be particularly grave for the loved ones.
What are intestacy laws?
Each state has what are called “intestacy laws.” These laws (along with other court procedures) establish what happens to your “intestate estate” when you die without a will. In most states, they will transfer the vast majority of your intestate estate to your spouse, children or close relatives. In some cases, these laws may produce the same basic results you would have specified in a will. But, in some common situations, the applicable intestacy laws may dictate an outcome that is not only contrary to your wishes, but patently unfair.
We will go over what is included in your “intestate estate” in a minute. But, in the meantime, you should keep the following in mind about the intestacy laws:
- If you are married, your current spouse will get the vast majority of your intestate estate.
- If you are not married, your closest blood relatives like children, parents or siblings will get the vast majority of your intestate estate. This is true even if you are in a committed relationship with someone you care about.
- Courts don’t really care if you like your close relatives or if you are estranged from them. Your spouse and close biological relatives are your heirs if you die with no estate plan.
What is your Intestate Estate?
Intestacy statutes only affect your “intestate estate.” This is all of your property and belongings that aren’t titled jointly or covered by a pay-on-death designation.
For example: if you own your home in joint tenancy with your mom, your mom will get your house regardless of what the intestate statutes say (or for that matter what your will says).
Similarly, if you have a bank account or retirement account that has a pay-on-death designation, the person designated will take those assets regardless of what the intestacy laws or your estate plan says.
For example, if you have three kids and your bank manager told you to put one of them “on the account,” that child gets all the money in that account. So you better hope your kids have learned to share better than they did when they were in elementary school.
The intestacy statutes cover the assets, belongings, real estate and possessions that do not include “pay-on-death” or beneficiary designations and are not titled jointly. Things like cash, or homes or vehicles that are titled in your name alone. If you have questions about how to appropriately title your assets so that you can achieve a desired outcome, call the Law Office of Keeanan Copple PC today.
When Should I REALLY Consider an Estate Plan?
The following list of examples is not exhaustive by any means. No matter your circumstances, you will make things easier for your loved ones if you have an estate plan. By providing a road map for your wishes, you reduce the risk of conflict and you reduce the expense probating an estate with no instructions or guidance. However, in the following situations, the stakes are too high to leave things to the courts.
Do You Have Children from a Prior Relationship?
If you are remarried and want to help provide for kids from a prior relationship, it is critical that you establish an estate plan. If you die without one, it is very likely that the law will operate to give your spouse the vast majority of your intestate estate. Combine this with the fact that people often own their home and other valuable assets as joint tenants with their spouse and your second spouse is likely to get basically everything.
Your second spouse has no obligation to honor promises you made to help your kids with grad school or to continue supporting your children as you may have during your life. Getting along reasonably well at Thanksgiving is one thing; doing the “right thing” when you have a pile of money in your lap is another. Don’t put your family in that position. Without the benefit of a carefully considered estate plan, your second spouse will likely get almost everything. It’s game over for your kids. This is also the type of nightmare scenario that can generate a long and costly battle in court.
Do You Have Minor Children?
Minor children do not just pass with your intestate estate. If you have not designated a preferred guardian for your minor kids and you pass away, a court is going to do its best to decide what is in your children’s best interests. But, here is the thing a court isn’t going to know much about your kids and family. If your sister and brother-in-law show up and are willing and able, the court isn’t going to consider the behind-the-scenes things that may be important to you. A court is going to look for a suitable home and guardian and will often prioritize blood relationships.
- Maybe your brother-in-law is a flat-earther who said “all those #metoo broads should shut their mouths and get back in the kitchen” at the last family get-to-gether.
- Maybe your kid is an awesome little snowboarder and your closest relatives (from a biological standpoint) live super far from Colorado and the mountains.
- Maybe you are suspicious that one of your children may be gender non-binanary and most of your husband’s family are fundamentalist Christians.
- Maybe you have close friends that live here in Denver that you would prefer to have take your kids if something happened to you.
A court isn’t going to consider those things, especially since these types of things are not likely to be brought to a court’s attention. A court is just going to place your kids with somebody that seems reasonably fit and generally the court will prioritize your relatives. Don’t leave your kid’s future to chance. Establish an estate plan that designates a guardian. You can be confident that your wishes will be taken into account and that your kids will be taken care of. If you feel like it is time to designate a guardian for your minor children, please call the Law Office of Keenan Copple PC. We can discuss your options a do what is right for your kids.
Are you unmarried, but in a committed relationship?
If you are not married, but are in a long-term committed relationship with a partner, I would strongly urge you to consider what will happen if you were to pass away.
I have heard a number of stories about longtime partners being kicked out of their home of ten, fifteen or twenty years because their partner passed away without having a will or appropriately titling their assets.
How could something so harsh and unfair happen? Well, if you own the house where you and your partner reside and have not planned and provided for your partner, they will not be entitled to a thing under the law. If you pass away, your parents or siblings will inherit your house and will have the right to evict your partner. It will not matter how long you have lived together, or how much you love each other. It will also not matter if you haven’t spoken to your family in years. But, this unwanted outcome can be so easily avoided with a little forethought and planning.
With a simple estate plan and a review of how your major assets are titled, you can easily ensure that your partner and loved ones will be taken care of.
Do you have a close relative that you’d rather not benefit from your estate?
Over the years, a lot of my clients have had that relative that they want to make sure doesn’t benefit from their estate.
- Maybe your brother already perpetrated financial fraud on your ailing parents before they passed away.
- Maybe one of your kids has substance abuse issues and you are afraid a cash inheritance will be tantamount to a death sentence.
- Maybe your parents essentially disowned you when you came out and you have been estranged for most of your adult life.
- Maybe your mom left when you were little and as far as you are concerned your step-mom is your true mom.
In the years I have been doing this work, I have heard countless reasons that clients don’t want certain people to inherit their hard earned money. They are nearly always well-considered and completely valid. But, those considerations are irrelevant if you leave things up to the intestacy laws. I love helping clients to make sure that the money they have worked so hard for goes to the people that they want to help.
Do these situations sound like your life?
If any of the scenarios sound like your life, the great news is it is so easy to establish an estate plan that will prevent unfair and unwanted outcomes. Contact The Law Office of Keenan Copple PC today and I would be delighted to speak with you about your current situation and recommend some tools and strategies to ensure that your wishes are honored and your loved ones are taken care of.