If You Don’t Have a Will, a Judge Will Choose Your Executor
When someone dies, there is business to take care of. Debts must be paid, assets inventoried, and property distributed to heirs. The executor of the estate (known as a personal representative in some states) is responsible for completing these tasks. The executor must be honest, ethical, and preserve the estate’s assets until they can be distributed to the proper heirs.
When you prepare a will, you choose your own executor rather than a court choosing one for you. A good executor is trustworthy, organized, and can be counted on to handle the process efficiently and communicate effectively with the rest of the family. The wrong executor may steal property, mismanage assets, alienate family members, and cause expensive court battles that keep your estate tied up in litigation for years.
When you die without a will, a probate court judge appoints an executor. An executor must be at least 18 years old (or 21 in some states), and may be required to be a resident of the state. Every state has a hierarchy of people for the judge to consider. A surviving spouse usually comes first, followed by adult children and then other heirs, such as your parents or siblings. Children under 18 (or 21 in some states) cannot be named as executor.
However, the court doesn’t know your family like you do, and a court-appointed executor might not be the right person for the job. A judge might appoint someone who has a history of dishonesty, dislikes your other heirs, or is simply disorganized. You can increase the chance that your estate administration will go smoothly by carefully choosing an executor and naming that person in your will.
Without a Will, You Have No Say in How Your Property is Distributed
Wills and intestate succession laws determine how the property in your estate will be distributed after your death. Your estate may not include everything you own because some of your property may pass directly to co-owners or beneficiaries regardless of what your will or the intestate succession laws say. These nonprobate assets include jointly owned real estate or other assets, life insurance policies, retirement accounts, trusts, and bank accounts with a payable on death designation.
If you have a will, the property in your estate will be distributed in the way your will specifies. You can leave specific property to certain people, or you can divide things in whatever proportion you want. You can leave money or property to friends, relatives or charities.
Dying without a will means that your state’s laws of intestate succession will determine who gets the property in your estate, and in what proportions. In general, intestate succession laws give the estate to your closest living blood relatives. Adoptees are treated as biological children of their adoptive parents. The outcome in any individual case will depend on the state you live in and the family members that survive you.
For example, if you leave behind a spouse and adult children, your spouse will typically get a third to a half of your estate, and the children will get the rest (though in some states the spouse may inherit the entire estate). If you don’t have a spouse or children, your estate will usually pass to your parents. If your parents are deceased, it may pass to your brothers and sisters.
The rules of intestate succession ensure that your assets are passed on in an orderly manner, but they may not reflect your wishes. Stepchildren don’t inherit anything under most states’ intestacy laws. Friends, romantic partners who you’re not married to, and charities also get nothing under the rules of intestate succession. And your siblings and nieces and nephews may not inherit anything if you have closer relatives. If your siblings do inherit, most states treat half siblings the same as full siblings, though some states give a smaller share to half siblings.
Intestacy also raises questions about what your intentions might have been and can lead to bitter disputes among family members. For example, when NFL player Steve McNair was murdered and left no will, his wife and mother ended up in a court battle over a farm that the mother claimed he bought her as a gift.
If you die intestate, money and property is distributed outright to your heirs who are over 18 – whether they are capable of handling an inheritance or not. And this can cause problems. Your 19-year-old can blow it all on a couple of months of living high on the hog. A disabled relative can lose hard-won government benefits. When you prepare a will, you have a chance to set up trusts that will benefit your heirs without giving them immediate access to all of their inheritance.
A Judge Will Decide Who Will Raise Your Kids
If you have a will, you can appoint a guardian to care for your children until they reach age 18. If you don’t have a will, a guardian will be appointed by a probate judge.
The judge will base the appointment on the “best interest of the child” – similar to the standard that’s used in child custody cases. Potential guardians may petition the court to be appointed, and the judge will make a decision based on several factors, usually giving preference to close relatives who the children know well.
But a judge doesn’t truly know your children, your family, or what you value most. He or she may make a decision that is not at all what you would have wanted. And family members, not knowing your wishes, may be more likely to fight over the children, causing stress for everyone.
You May Have to Pay Estate Taxes (but probably not)
As of 2016, you don’t need to worry about federal estate taxes unless your estate is worth more than $5.46 million. Smaller estates are excluded from paying federal estate tax.
Some states impose a state estate tax, though many have now eliminated them. The size of estate that’s excluded from state estate tax varies by state. New Jersey currently has the lowest estate tax exclusion, levying estate tax on all estates valued at more than $675,000.
A will won’t help you avoid estate tax, but an overall estate planning strategy sometimes can. Although estate taxes might not be a concern for you now, it’s helpful to be aware of them so you can revisit your estate plan if your financial situation changes dramatically.
A death in the family is always difficult. By preparing a will, you make your wishes known and ease the process for everyone. At Willing.com, we’ve helped thousands of people create their wills online, for free. Find out how to get started on yours today.