“The subject matter is the biggest obstacle to creating a will,” Linda Amato, founder of Amato Law, told The Balance in a phone interview. “People don’t want to deal with their mortality, death isn’t a pleasant subject, and the process stirs up emotions about the relationships.” Let’s look in closer detail at the consequences of dying without a will, including what happens if you die without a will when you’re single or in a domestic partnership, as well as if one spouse dies without a will. Also learn about tips for writing a will and some of the key benefits of creating this legal document.
How a Will Protects Your Beneficiaries
A will names the beneficiaries who will receive your estate as well as who will manage and distribute your assets, Somita Basu, a partner at Norton Basu, told The Balance in an email. Beneficiaries, or heirs-at-law, are individuals with the legal right to inherit your assets. If you don’t have a will specifying how your assets should be distributed to beneficiaries, then your estate will go through a court process called probate. “It is a lengthy, costly, and time-consuming process,” Basu said. In these cases, the probate court appoints an administrator or representative to manage your financial affairs after your death. You don’t choose this person. The administrator collects assets and pays debts and expenses for the deceased. Then they distribute the remaining estate to the beneficiaries according to state law, which can be a lengthy process because it’s supervised by the probate court. The end result is that your assets will go to beneficiaries named by the court, not named by you. For example, your property could go to a family member whom you don’t want to receive it, and not a non-relative whom you want to have your assets. If you co-own a business as a single person and die without a will, you leave your business partner vulnerable, Franco said. Your half of the business could be passed on to an heir you didn’t choose—which could lead to litigation.
State Intestate Laws Vary
What exactly happens to your assets when you die without a will varies by state. Often, courts use a by-the-numbers formula for determining where your assets should go, determined by state intestate laws. For example, in New York, if you die without a will and have a spouse and no children, your spouse inherits everything. If you have children but no spouse, the children inherit everything. If you have a spouse and children and die without a will, your spouse inherits the first $50,000 plus half of the balance of your estate. Your children inherit everything else. Depending on state law, others who could be granted your accounts and assets include your:
StepchildrenParentsSiblingsNieces and nephewsCousinsGrandparents
Taxes on your remaining estate differ by state. For example, if you die without a will in Mississippi, estate taxes aren’t collected. If you die without a will in Illinois, estate taxes are collected.
Single People Who Die Without Wills
Establishing an estate plan may be particularly important if you are a single parent. If you pass away without a will, the courts will base the decision on who will raise your children on the law, not your preference, values, or relationships. Without a will, a probate court judge decides, for example, who will manage your affairs, inherit your money, care for your pets, and raise your children. Single people can benefit from naming a beneficiary on financial accounts as they will receive payment automatically after the bank receives proof of death, even if they are unrelated. However, creating a trust containing those accounts can help preserve assets, reduce tax issues, and prevent your beneficiaries from squandering their inheritance.
What if One Spouse Dies Without a Will?
What happens when one spouse dies without a will can depend both on state laws and whether or not they have children. For example, if you die without a will in California and have children, your spouse will typically inherit one-half of your community property and one-half to one-third of your separate property. If you do not have children or surviving parents, your spouse will inherit your entire estate. Other states may distribute assets differently. California is a community-property state, which means property acquired during the marriage is owned by both spouses, even if only one spouse’s name is on the title for the property. Other community-property states include Arizona, Idaho, Louisiana, New Mexico, Nevada, Texas, Washington, and Wisconsin. In blended families such as second or third marriages with stepchildren, dying without a will can lead to a contentious and emotional process for families.
What if One Domestic Partner Dies Without a Will?
Some states apply inheritance laws on marriage to domestic partnerships, while other states that recognize domestic partnerships may not recognize inheritance rights. So a domestic partnership is not always an ideal substitute for a will. For example, in New York, domestic-partnership rights include certain health insurance benefits, housing, and visitation, but not inheritance rights. “Because a domestic partner [in New York] is not considered a spouse, a surviving domestic partner does not have any inheritance or life insurance rights, absent a specific bequest in a will,” Amato said. A few states recognize common-law marriage, which has the same legal rights as a marriage that has a license. States with some form of a common-law marriage include Colorado, Iowa, Kansas, Montana, New Hampshire, South Carolina, Texas, and Utah. These informal marriages may lead to distribution of assets to one domestic partner after their partner’s death.
How To Write a Will
Working with an estate-planning professional can help ensure your will is valid, but you can also write your own will using computer software or online programs. If you write your own will, make sure the document is signed and dated. Depending on your state laws, you may be required to have it witnessed by two people who don’t receive anything from the will’s terms. Many people believe they need a simple will until they get into the process and learn more about important issues, Amato said. Basic online-will questions may not address, for example, tax planning, special-needs planning for a minor child, international property, or unique state situations. Consider consulting with a professional attorney to help you draft your will to ensure it meets all your needs. Want to read more content like this? Sign up for The Balance’s newsletter for daily insights, analysis, and financial tips, all delivered straight to your inbox every morning!
