avoid intestancy

Why you want to Avoid Intestacy.

by

Why You Want to Avoid Intestacy

When planning for the future, leaving things to chance is rarely wise. This holds especially true for your assets and estate distribution after you’re gone. Intestacy, or dying without a valid will, can lead to unintended consequences that may impact your loved ones and create unnecessary complications.

About two out of three Americans will die without a will. This is known as dying intestate.

While the reasons for not having a will vary, the result is the same for everyone: they do not get to choose who receives their property when they die. Instead, their money and property are distributed according to the laws of their state in a process called intestate succession.

This is a good thing. In most states, a person’s spouse, children, parents, and siblings are given priority in the line of succession. But even if someone is okay with their next of kin receiving all of their money and property, a beneficiary can still be required to go through a lengthy and costly court process when there is no will.

State law can only assume how the typical person would dispose of their estate, when a state’s default intestacy laws do not align with the actual preferences of the decedent about who should get what, this can lead to several issues.

Sample State Intestacy Laws

It is understandable why people do not want to talk or think about death. But dying without a will takes power out of the individual’s hands and puts it in the hands of the state and its one-size-fits-all intestacy laws.

For a general idea of what happens when a person dies intestate, here is how intestacy law works in a few states:

New York

  • If the decedent has a spouse, the spouse inherits everything.
  • If the decedent has children but no spouse, the children inherit everything.
  • If the decedent has a spouse and children, the spouse inherits the first $50,000 plus half of the balance, and the children inherit the rest.
  • If the decedent has no spouse and no children, the decedent’s parents inherit everything.
  • The siblings inherit everything if the decedent has no spouse, children, or parents.
  • If the decedent has no living family, their property goes to New York State.

Things can get trickier when children inherit by law from their parents. Adopted children have the same rights as biological children, but foster children and stepchildren do not unless they are legally adopted.[1]

California

The state of California differentiates between community property and separate property.[2] The former generally includes all property acquired by either spouse during the marriage, while the latter is obtained before or outside the marriage.

When a person dies intestate in California while married and they have one child or grandchild, the spouse inherits all of the community property and half of the separate property; the child or grandchild inherits the rest. If they die married and intestate with two or more children, the spouse gets all of the community property and one-third of the separate property, with the rest split equally among the children.

California also has a few unique intestacy laws. For example, half-siblings who share a parent are treated as whole siblings for intestacy purposes,[3] and children born after the decedent’s death are treated as heirs.[4]

Florida

In Florida, intestate succession hinges on whether a person is married and has children with their spouse.

  • If the decedent is married and they have children together, the spouse inherits 100 percent of the estate.
  • If the decedent is married and has children from a previous relationship, the spouse inherits 50 percent of the estate, and their children receive the other 50 percent.

Note that in Florida, if the spouse has children from another relationship, they inherit nothing under intestacy laws. The decedent’s biological children, even those from another marriage, are given preference over a surviving spouse’s children from another relationship.[5]

Florida places legally adopted children on the same level as biological children. Grandchildren only receive an intestate share if their parent (i.e., the decedent’s son or daughter) is not alive to receive their share.

Potential Consequences of Dying Intestate. The above examples should be sufficient to show how state intestacy laws, while broadly similar from state to state, vary in detail and can quickly get complicated, especially when a family is blended and does not have a typical nuclear structure. Because more than half of marriages now end in divorce, most families have shifted from having a biologically bonded mom, dad, and kids to a blended family structure.[6].

Nonblood Beneficiaries.   Default intestacy laws can leave out not only stepchildren, foster children, and children placed for adoption but also close family friends, charities, and others unrelated by blood.

Who Receives the Money and Property—and How Much?   Intestacy laws are rigid about who receives how much. Intestate shares are statutorily determined and do not consider special circumstances, such as an heir receiving income-based financial aid and may be disqualified from further benefits due to an estate disbursement. This could be avoided by placing money and property in a trust for that individual’s benefit.

Parents commonly divide their money and property equally among their children, but no law requires this, and there are good reasons why some parents do not want equal distributions. State intestacy laws preclude unequal distribution as well as intentional disinheritance of a child.

Other Problems

These special circumstances require nuance in an estate plan, but state intestacy laws are not nuanced. Intestacy can also give rise to the following additional issues:

  • Loved ones are unable to make specific funeral arrangements.
  • The probate court chooses a personal representative to manage the estate, who may not be somebody the decedent would choose for this role
  • The court decides who raises minor children.
  • Small business owners can lose control of what happens to the business when they die.
  • Property that the decedent intended to keep in the family could be sold.
  • The probate process can be lengthy and delay how soon loved ones receive money and property.
  • Probate costs can drain money and property that otherwise would have gone to heirs.
  • Arguments can break out between heirs about what the decedent would have wanted.
  • Digital assets like social media and fintech accounts could be left in limbo.
  • There are no instructions for end-of-life care or incapacity.

To clarify, not all accounts and property pass through probate when somebody dies without a will. Some accounts and property bypass probate, including those jointly owned with survivorship rights, accounts with beneficiary designations, and transfer-on-death and payable-on-death accounts. Anything owned by the decedent in their name at death without a

[1] When There Is No Will, NYCourts.gov, https://nycourts.gov/courthelp/whensomeonedies/intestacy.shtml (last visited July 26, 2023).

[2] Cal. Prob. Code § 6401 (West 2022), https://leginfo.legislature.ca.gov/faces/codes_displaySection.xhtml?lawCode=PROB&sectionNum=6401.

[3] Cal. Prob. Code § 6406 (West 2022), https://leginfo.legislature.ca.gov/faces/codes_displaySection.xhtml?lawCode=PROB&sectionNum=6406.

[4] Cal. Prob. Code § 6407 (West 2022), https://leginfo.legislature.ca.gov/faces/codes_displaySection.xhtml?lawCode=PROB&sectionNum=6407.

[5] Fla. Stat. § 732.102, http://www.leg.state.fl.us/statutes/index.cfm?App_mode=Display_Statute&Search_String=&URL=0700-0799/0732/Sections/0732.102.html.

[6] Stepfamily Statistics, The Step Family Foundation, https://www.stepfamily.org/stepfamily-statistics.html (last visited July 26, 2023).

Additional Reading

Estate Planning Essentials for the Sandwich Generation

Estate Planning Essentials for the Sandwich Generation

The Sandwich generation refers to a generation of people who are simultaneously caring for their aging parents and their children. This group often feels “sandwiched” between the needs of their parents and their children and may face challenges in balancing caregiving...

read more
How Marital Trusts Help Protect Blended Families

How Marital Trusts Help Protect Blended Families

Navigating Marital Trusts: Securing Your Spouse's Financial Future Embarking on a journey of blending families brings its own set of joys and challenges. In this blog post, we unravel the complexities of estate planning for blended families and explore why the Marital...

read more
Essential End of Life Documents: What You Need to Know

Essential End of Life Documents: What You Need to Know

End-of-life planning is a crucial aspect of life that often goes unaddressed until it's too late. Beyond drafting wills and trusts, understanding the array of end-of-life documents is paramount for ensuring a comprehensive and legally sound estate plan. This  guide...

read more
Clean Slate: Navigating the Maze of Unwanted Subscriptions.

Clean Slate: Navigating the Maze of Unwanted Subscriptions.

In the era of digital subscriptions, keeping tabs on services that automatically renew can be a challenge. However, fear not – we've compiled a guide to help you reclaim control over your subscriptions. From user-friendly tools to convenient services, here's how you...

read more