What Happens If I Don't Have a Will?

​You’re probably familiar with the adage about the only two certainties in life being death and taxes. While the taxes are their own can of worms, death is the inevitable end that all must be prepared for. This is especially the case for adults who hold specific wishes for how their estate is split up or how their children are raised in the case of their (the parents’) untimely passing.
 
With a will, these matters of property and childcare can be easily addressed by your will’s designated Personal Representative. Without a will, however, you will be considered as passing “intestate,” a legal term meaning “dying without a will.” Without a will, your assets will be distributed by default according to your state’s guidelines for inheritance. This process can create a great deal of difficulty for your next-of-kin, so consider the following impacts before you go even one more day without a will:
 
Legally-Mandated Distributions
 
With a will in place, you are able to choose precisely how your estate, which includes all your assets such as your house, car, bank accounts, jewelry, etc., are distributed. It also dictates who receives which assets and at what time. In the absence of a will, however, Massachusetts law will govern the process of distributing your estate through their statutorily mandated intestacy laws.
 
This means that the law will determine who are your heirs, the people who receive your assets, and how much they each will receive. Generally speaking, much of your assets will pass back to your parents (if they are still alive). Otherwise, the state will begin distributing assets to other direct family members, such as siblings. Even if you are married, in many cases your spouse will have to split assets with your other family members.
 
Unclear Guardianship for Minor Children
 
The overwhelming concern that most parents have in estate planning is the care of their children in their absence. Without a will, your children’s guardians and conservators will be chosen much in the same way as your unresolved physical assets. That is, the judge, overseeing the probate of your estate, will choose who will care for your children according to a predetermined schedule of who is given priority. Without your choice memorialized in a will, the judge’s decision may be against your wishes.
 
Surviving spouses and ex-spouses (if they are the child’s biological parent) are often given the first opportunity at guardianship. From there, the deceased individual’s siblings may have an opportunity, followed by any further direct relatives. In any case, this process is extremely cumbersome and emotionally draining on all involved. It can be avoided, however, through the use of a well-drafted will.
 
The Bottom Line
 
All in all, an intestate estate is not desirable given its unpredictability and its inability to legally codify your last wishes. Even if the intestate laws of your state are aligned with your wishes, laws change, your family situation may change. Choosing who cares for your children is not best left to chance. As such, the creation of a will should be a top priority for all adults, regardless of their parental or property ownership status. When you’re ready to create or update your will, contact SLN Law’s estate planning experts to learn more about what a well-drafted will should include.