Home > Education Center > March 2016 > The Consequences of Dying Without a Will

The Consequences of Dying Without a Will

Posted: 3/24/2016 2:14 PM by Interim HealthCare

Dear Savvy Senior,
What will happen to my money and possessions if I die without a will?
Getting Old

Dear Getting,
If you die without a will, what happens to your assets will be determined by the state you reside in. Every state has intestacy laws in place that parcel out property and assets to a deceased person’s closest relatives when there’s no will or trust. But these laws vary from state-to-state.

A good resource to help you find out how your state works is About.com’s Wills and Estate Planning site, which provides a state-by-state breakdown of how your estate would be distributed if you die without a will. See StateIntestacyLaws.com for a direct link to this page.

In the meantime, here is a general (not state specific) breakdown of what can happen to a person’s assets, depending on whom they leave behind.

Married with children: When a married person with children dies without a will, all property, investments and financial accounts that are “jointly owned” automatically goes to the surviving co-owner (typically the spouse or child), without going through probate, which is the legal process that distributes a deceased person’s assets.

But for all other separately owned property or individual financial accounts, the laws of most states award one-third to one-half to the surviving spouse, while the rest goes to the children.

Married with no children or grandchildren: Some states award the entire estate to the surviving spouse, or everything up to a certain amount (for example the first $100,000). But many other states award only one-third to one-half of the decedent’s separately owned assets to the surviving spouse, with the remainder generally going to the deceased person’s parents, or if the parents are dead, to brothers and sisters.

Jointly owned property, investments, financial accounts, or community property automatically goes to the surviving co-owner.

Single with children: All state laws provide that the entire estate goes to the children, in equal shares. If an adult child of the decedent has died, then that child’s children (the decedent’s grandchildren) split their parent’s share.

Single with no children or grandchildren: In this situation, most state laws favor the deceased person’s parents. If both parents are deceased, many states divide the property among the brothers and sisters, or if they are not living, their children (your nieces and nephews). If there are none of them, it goes to the next of kin, and if there is no living family, the state takes it.

Make a Will
To ensure your assets go to those you want to receive them, you need to create a will. If you have a simple estate and an uncomplicated family situation, there are several good do-it-yourself resources that can help you for very little money.

One of the best is the Quicken WillMaker Plus 2016 software (available at nolo.com) that costs $55, works with Windows personal computers and is valid in every state except Louisiana. If you use a Mac, they offer an online will maker for $35.

If, however, you want or need assistance or if you have a complicated financial situation, blended family or have considerable assets, you should hire an attorney. An experienced attorney can make sure you cover all your bases, which can help avoid family confusion and squabbles after you’re gone.

Costs will vary depending on where you reside, but you can expect to pay anywhere between $200 and $1,000 for a will.

The National Academy of Elder Law Attorneys (naela.org) and the National Association of Estate Planners and Councils (naepc.org) are good resources that have online directories to help you find someone in your area.

If money is tight, check with your state’s bar association (see findlegalhelp.org) to find low-cost legal help in your area. Or call the Eldercare Locater at 800-677-1116 for a referral.