Mar 10, 2014 Don’t Have a Will? What Happens Then?
In 2007, a study conducted by Harris Interactive for Martindale-Hubble showed that the majority of Americans do not have a will. Why is this? Some common excuses include cost, not enough time, and the idea you really don’t need one. If this sounds like you, you’re not alone. Abraham Lincoln, the 16th President of the United States, and an attorney himself, didn’t even have a will when he died.
Unfortunately for you, just because Honest Abe didn’t have a will doesn’t mean it’s alright for you not to have one. The fact of the matter is, failing to have a will can have major consequences, which can be both emotionally and financially damaging. Just ask the estate of Jimi Hendrix. For more than 30 years his family battled over who would get the late musician’s estate. Not only did the legal battle divide the family and cause major contention therein, but it also cost his estate hundreds of thousands, if not millions, of dollars in unnecessary attorney fees and court costs. All of which could have been avoided had he executed a simple will.
So what really happens if you die without a will? Each state has a unique descent and distribution scheme for individuals without a will. In Washington State that scheme can be found in RCW 11.04.015, and is dependent on the categorization of your property. Is your property separate or community in nature? Separate property is defined as property acquired prior to marriage, or during marriage by gift or inheritance. Whereas community property is characterized as property acquired, other than gifts or inheritances, during marriage.
Washington State’s intestacy scheme can be fairly straight forward; however, there are a variety of situations where it becomes very complicated. The following is a graph detailing how your separate property will be divided if you do not have a will:
As you can see, dying with separate property and without a will can be very complicated, and may not be what you want. For instance, if you have a surviving spouse and a minor child from a previous marriage, your separate property will be divided equally between your surviving spouse and minor child. This may create a number of issues, which can include your surviving spouse having inadequate resources to live on, and giving your minor child access to funds that they are not prepared to handle at such a young age. These issues can easily be avoided by having a will in place prior to your death.
Again, passing away with community property and without a will is complex and generates a plethora of issues. Thankfully, these complexities and concerns can easily be remedied with a will.
Lastly, who is going to manage your estate upon your death? In a will an Executor or Personal Representative is named to manage the decedent’s estate. This is someone you trust and have specifically chosen. If you don’t have a will, the court will appoint the Personal Representative on your behalf. This person may or may not be someone you have confidence in. Do you want to take that risk and have the court appointing someone you don’t trust?
Having a will in place prior to your death allows you the freedom to choose how your assets will be divided, regardless of their character (separate or community). Furthermore, it gives you the power to choose who will manage your estate upon your death. Don’t take the risk of dying without a will. See an estate planning attorney as soon as possible. Get your affairs in order and avoid the purple haze of uncertainty.
Lawyers.com, “Majority of Americans Adults Remain Without a Will.” Accessed on January 8, 2014, http://press-room.lawyers.com/Majority-of-American-Adults-Remain-Without-Wills.html.
Legalzoom.com, “10 Famous People That Died Without a Will.” Accessed on January 8, 2014, http://www.legalzoom.com/legal-headlines/celebrity-lawsuits/10-famous-people-who-died
Legacy.com, “Jimi Hendrix’s Messy Afterlife.” Accessed on January 8, 2014, http://www.legacy.com/news/legends-and-legacies/jimi-hendrixs-messy-afterlife/91/.
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