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, if you are married with children (and all of your children are also the children of your spouse), all of your assets will go to your spouse, with no separate provision for your children.  This leaves you no way to guarantee that anything will ultimately go to your children (for example, imagine your spouse remarries and has other children).  In other family situations, assets will generally be divided between your spouse and children, in proportions that may not match what you want.  Otherwise, the state will begin distributing assets to other direct family members, such as siblings.
 
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) continue to have parental rights. If the other parent is also deceased or incapacitated, 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.

Increased Cost for Your Family
 
Simply put, the process of probating an estate takes longer if things aren't clearly spelled out in a will.   This means whoever your family hires to manage the process will have to spend more time, meaning the fees that come out of what would otherwise go to your loved ones are higher.  The cost can be even further increased if there is conflict among the surviving family about assets or guardianship.
 
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.