What happens if you die without a will?

Have you thought about what will happen to your spouse if you die without a will? People who die without a will are referred to as “intestate” and their real and personal property is distributed according to the laws of the state in which they lived (resided) at the time of death.

Unfortunately, sometimes people fail to plan ahead for their family. This unintentional omission can cause severe financial hardship for your spouse and children. If you die without a will, you are setting your surviving spouse and children up for a difficult, lengthy, and possibly expensive intestacy proceeding to get your property distributed and retitled. The only thing worse than probate from an inheritance standpoint, is intestacy. Intestacy doesn’t care about your family situation or who you would like to inherit your property.  Your surviving spouse may even lose your property if he or she is forced to sell it in order to buy out another family member who wouldn’t even had been in your will if you had left one.

Every state’s intestacy laws are different and you should check with an attorney licensed in your state for verification, but generally if you are married and have one or more surviving children, it is possible that fifty percent of your real and personal property will go to your spouse under intestacy and the other fifty percent will be divided between your children. This situation can be devastating for your spouse.

For example, consider a situation where you and your spouse own your home and car jointly. You have three children from a prior marriage. When you die, your surviving spouse now has to negotiate with your three children from your prior marriage (who hate her) because they now own half of the house she lives in and the car she drives.

Even if your children are from your current marriage, your surviving spouse may not want to share ownership of the house and car with her own children. Perhaps, you both have had difficulties with your children over money, maybe they are underage, or  emotionally immature. Now, your surviving spouse is forced to have to deal with the children or, if they are underage, a court appointed custodian (incurring additional court costs) in order to continue to live in her own home and drive her own car.

If your spouse can’t work things out regarding the home and the car, she may be forced to hire an attorney to begin the court process for an intestate share and/or life estate if your state law contains this provision. Unfortunately, attorney fees and court costs can quickly decimate a small estate.  If your spouse doesn’t have enough cash on hand in her own name to buy out the children and regain full title and control over the house and car, she may have to sell the house voluntarily and move, or even worse, sell the house in a forced partition action by the court. Forced partition sales can result in a very low sale price for the property, leaving your spouse homeless, without a car and with very little cash from the forced sale to find another place to live. This is a completely preventable tragedy. To prevent it, all you have to do is contact an estate planning attorney in your state and make arrangements to protect what happens to your assets after you die. Make sure the people you want to get your assets get them. For assistance, contact us at Law Office of Nancy L Roberts PLLC.

Leave your family a legacy – not a  loss!


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