What do Abraham Lincoln, Pablo Picasso, Aretha Franklin, and Prince have in common? They all died intestate. Dying intestate means that the person who died does not have a will that describes how they want their estate divided after they’re gone.
What happens when someone dies intestate? When a person dies without a will, courts will impose default rules on the estate of the deceased. The default rules are the legislature’s best guess at how a person would normally want their estate divided. Normally that means dividing up the assets among a surviving spouse and children, if any, or to other relations if no spouse or children are still living.
There are three main problems with the default rules in intestacy, and they all come from the fact that the default rules assume that the decedent (that’s the person who has passed) would want to divide their assets among their closest relatives. While that is often the case, the rules do not make allowance for the complexities of real life and real relationships.
The default rules are the legislature’s best guess at how a person would normally want their estate divided...[but they] do not make allowance for the complexities of real life and real relationships.
First, let’s consider relationships that aren’t legally acknowledged, such as by marriage or birth. If there is a significant other in your life to whom you would like to leave some property in case something happens to you, they may be out of luck unless you put it down in a will or if they can somehow prove a common law marriage existed. Similarly, most states do not recognize unadopted stepchildren as intestate heirs. In other words, let’s assume your spouse has children from a previous relationship and you’ve never adopted them. It may be that, no matter how much you may love them and want for them to inherit from you after you’re gone, they may not receive anything from you unless you specifically bequeath it to them in a will.
Next, let’s consider giving to an organization or charity. Once again, the default rules assume that the assets held by a decedent’s estate should go to the decedent’s closest relatives. Thus, no such special gift will be made from the decedent’s estate, regardless of what the decedent may have actually wanted.
Finally, the default rules for intestacy generally do not consider specific bequests, even among heirs recognized by the intestate rules. Portions of a decedent’s estate are usually handed out to intestate heirs by percentage, rather than specific items. In other words, if you would like for a specific person to receive a specific piece of property from you, it is imperative that you name that specific bequest in a will or alternative device.
The bottom line is thus: If you have specific wishes for how you’d like your property to be distributed once you’re gone, it’s important to discuss your plans with your loved ones, make a plan, and then act on that plan.