On Wills and Ways

Answer 1

You’ve heard it said that “Where there’s a will there’s a way”. But the truth is that even where a will is not present there is still a way…to divide your assets that is.

Many people make the mistake of dying without a will to direct the handling of their estate. When this happens the state decides how to divide up their assets, in what is known as intestate rules. (Intestate means without a will.) A general discussion of intestate rules is somewhat fruitless, since each and every state has its own rules for intestate distribution. There are some similarities however.

Many states use what is called the Uniform Probate Code as a rough guideline on which to build their intestate distribution statutes. So it can be helpful to examine this code, understanding that it is not necessarily how your particular state will decide things, as an eye-opening look into a possible scenario.

The uniform code treats close relatives in preference to distant relatives. No, I don’t mean that your cousin who is your best friend gets the house and boat and your estranged brother gets nada. What this means is that those closest to you on the branches of your family tree, no matter how dysfunctional it may be, take preference. If there are no relatives to whom the state can transfer the assets of your estate they likely will seize the property for the benefit of the state itself. And that probably is not what you want done with your estate.

Another sticking point you are likely to find is that states tend to disinherit step-children and/or foster children, even if your intent would have been to leave an equal share to them. Even if you made it known what you wanted done with particular items of property or other assets, the state will not make an exception to their intestate rules if there is not a valid will.

So find out what your states intestacy laws are. Then ask yourself if your individual states method of intestate distribution exactly matches your wishes? If the answer is no, then you need to get a will drafted.