If you die without a will, then you are considered to die “intestate.” When someone dies intestate, the distribution of their estate is determined by state law. Here are some of the many reasons why dying without a will is not recommended:
1. If you have minor children, the intestacy laws do not provide a means of appointing a guardian to care for your children.
When it comes to your children, you take all the necessary precautions as to who cares for them. You ask around for recommendations of a reputable babysitter. You research their school districts, teachers, coaches, etc. So why would you want to leave it to the courts to decide who cares for your children after your death? With a will, you are able to retain the power to choose a guardian for your children.
2. If you have minor children, you cannot leave property to your children outright.
Under North Carolina law, minors are not allowed to own property. As such, if property passes to a child directly under the intestacy laws, the courts will appoint someone to manage the property on behalf of your child. This process can be time-consuming, frustrating, and costly. The person appointed must file an annual accounting each year reporting–to the penny–all money into and out of the child’s account.
While this might seem like a reasonable protection, the result is that it often binds the hands of a surviving spouse or guardian that is caring for the children, making it difficult to handle day-to-day responsibilities such as paying a mortgage, utilities, educational expenses, etc. It is instead recommended that you include a trust for minors in your will or have a separate trust agreement to provide for the management of the children’s property. Such a document can be drafted to protect your children while still allowing flexibility to the surviving spouse or guardian.
3. Intestacy laws are not modernized for blended families.
In families with step-parents or step-children, certain family members that you want to be included may not receive the treatment you would like. For example, if you are a step-parent that would like some of your property to pass to your step-children but you have not legally adopted the step-children, the step-children will not receive anything under intestacy rules.
4. Couples without children typically want their spouse to receive everything.
Usually, most married clients without children want to leave everything to their spouse. However, under intestacy laws, your parents (if living) would actually receive a substantial share of your possessions. For example, if Ann passes away without a will and was married to Lisa and they did not have any children, but has two living parents, then Lisa would receive one-half of Ann’s real property and all or a large portion of Ann’s personal property (depending upon if the value is below or above $100,000). Ann’s parents would receive, in equal shares, the other half of Ann’s real property and possibly a portion of Ann’s personal property.
5. Unmarried persons may not want to leave everything to their parents.
If you die intestate and are not married nor do not have any children, then intestacy laws say your entire estate would be given to your parents first. In many instances, unmarried persons would instead prefer to leave their assets to their siblings, nieces and nephews, or a charity.
6. Intestacy rules do not include charitable gifts.
Intestacy laws do not allow for charitable gifts, even if there is proof you would have probably wanted to make a gift to a specific charity. We have many clients that decide to leave a gift to charity as part of their estate plan. However, if they had not drafted that estate plan, the intestacy rules would not have allowed for that gift to be made.
7. Heirlooms and sentimental possessions may be sold.
Did your grandmother leave you her wedding ring when she passed away? If you died intestate, then that ring could be sold, even if you were wanting to pass it on to someone else in the family. Many people have special family heirlooms, family vacation homes, or other sentimental possessions that they want to ensure remain in the family and are not sold upon their death. If the property passes through intestacy, there is a greater likelihood that such property may be sold. Having a valid will can ensure property treatment of such sentimental property.
8. What is equal may not be what you think is fair.
The intestacy statutes lean towards the equal division of property to those within the same generation. For example, equal division among parents if your property passes to your parents, or equal division among children if your property passes to your children. The reality for many is that an equal distribution may not be a “fair” distribution.
Parents with adult children often use wills to leave unequal amounts to their children due to particular circumstances. The parents may choose an unequal distribution because during their lifetime, they spent disproportionally more money putting one child through graduate school. Another common reason is that one child may have stayed close to home and taken on the caretaker role as the parents aged. However, a court cannot take any of these factors in an account under intestacy rules.
9. Special circumstances are not factored in as part of the distributions.
There are many, many reasons why intestacy does not fit most people’s wishes. Intestacy statutes are drafted with a “one size fits all” mindset, and just like one size fits all t-shirts, the intestacy laws often end up fitting very few people properly. The laws cannot take into account each person’s particular circumstances, so special situations will not be adequately resolved under the intestacy laws. Such special circumstances might include the need to provide for a special needs child, a pet, a business ownership interest, a close friend, a charity, and so on.
For example, Ted passed away unexpectedly in his 50s and did not have a will because he thought he had more time to make one. Ted was the legally-appointed guardian for his adult daughter Sarah, who has special needs. Ted’s oldest son Andy wants to be the new legally-appointed guardian for his sister Sarah, but Andy cannot do that without going through the guardianship process, which is a separate court process outside of probate. If Ted had created an estate plan, he could have planned for who would take over as Sarah’s guardian.
10. If there is no one eligible to take your assets, your entire estate goes to the government.
If someone does not have a will and does not have anyone that would be entitled to receive all or a portion of their estate as determined by intestacy laws, then the estate would “escheat,” meaning that all of the decedent’s property would go to the state of North Carolina for them to do whatever they want with it.
How to avoid intestacy?
Intestacy is easily avoided by creating a will or trust. If you do not have an estate plan in place, do not keep putting it off–you never know what may happen! One of our experienced estate planning attorneys can help you craft an estate plan that is tailored to your needs–rather than the “one size fits all” approach of intestacy.
Contact us at Carolina Family Estate Planning at 919-443-3035 in Cary, North Carolina, or schedule your consultation online, to begin the estate planning process with one of our experienced attorneys today.
Still doing your research? Check out our free guide: Estate Planning Pitfalls: The 12 Most Common Threats to Your Estate & Your Family's Future