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Estate Planning | Probate

Who Decides What Happens to Your Estate If You Die without a Will in Place?

9 min read
Philip Ahn, Attorney

by Philip Ahn, Attorney

Nearly 60% of Americans don’t have a will in place. Thinking about your demise and planning for it can be a daunting task. However, neglecting to do so can leave your family and loved ones in a tough situation after you die.

When you die without a will in place, your estate goes through the intestacy process. That means the state decides how your property and assets are given away and who manages the process. That includes your home, investments, jewelry, pets, etc.

Dying without a will in place is not only bad for your relatives and loved ones, but it could also be devastating for your minor children. Fortunately, you have time to create a legally binding will to ensure that your family and loved ones can focus on grieving and not have to sort out your affairs. Talk to an unbundled estate planning lawyer in your area today.

Learn more about what happens when you die without a will in place below. 

What Happens to Your Estate When You Have No Will? 

A few things can happen to your estate after you pass away. It depends on the state you live in, your marital status, and whether you have children. Generally, if you die without a will in place, your estate goes into an intestate succession process. 

Additionally, during a probate process, the probate court will name a representative to distribute your estate. That can sometimes be a challenge if there are children, spouses, parents, etc. 

Your assets can’t be distributed until the court decides who represents your estate. In some cases, no one in the family feels comfortable in that role. So the court names a “public trustee” to distribute your estate according to the laws in your state. 

If You’re Single

If you’re single and don’t have children, your siblings or parents will likely inherit your estate. That’s true even if they’re estranged, have bad relationships with your family, etc. The best way to control which family members receive a part of your estate is to draft a will so there are no gray areas. 

If You’re Married 

If you’re married, much of your property will likely go to your spouse based on the family laws in the state where you reside. However, if you’re married and have children, things could get a bit more confusing. 

That’s especially true if you have children from a past divorce and have since remarried. Since estate planning laws regarding marital property can be complicated, it’s recommended that you connect with a knowledgeable estate planning attorney to help draft a will. 

If You Have Children

Children under 18 whose parents die without a will in place suffer the worst consequences of anyone. That’s because the state will choose their guardian instead of the parent (if you’re not married or the other parent doesn’t share custody). 

That means your children could end up in the custody of someone you would never desire to raise your children. Without a will, the court decides who takes care of your children until they’re age 18. In rare cases, that can include foster institutions. 

What Happens When a Husband and Wife Die Together without a Will?

When a married couple dies together with no will in place, their estate is subject to the state’s intestacy laws. Furthermore, if they have children, the courts decide who becomes the guardian. While this doesn’t happen often, it’s a possibility. With that in mind, it’s in your family’s best interest to have at least a simple will in place to make things easier for everyone. 

How Does Dying without a Will Affect an Unmarried Couple? 

Regardless of how much your partner means to you when you’re unmarried and die without a will in place, they are unlikely to receive any of your assets. Your estate will be distributed according to your state’s intestacy laws. 

That means your assets, property, heirlooms, etc., go to your closest surviving family members. They may decide to give something to your boyfriend or girlfriend, but there is no guarantee. 

Who Executes an Estate When There Is No Will?

Technically, there must be a will in place for an executor to exist. However, when you die without a will, the state appoints a personal representative to handle the typical responsibilities of an executor including:

  • Paying funeral and burial expenses with the estate assets 
  • Paying debts of the estate using its assets
  • Locating, managing, and distributing the estate assets
  • Determining the value of the estate assets
  • Handling family objections and disagreements regarding the estate assets

Unexpectedly assigning this responsibility to someone can be devastating, to say the least. For this reason, among many others, top estate planning lawyers recommend that you take time to create a comprehensive estate plan. If you die without a will in place, your family and loved ones will have to deal with complicated probate processes while they grieve. 

What Happens to a House When the Owner Dies Without a Will?

It depends on how ownership of the house is recorded. For instance, if the home is jointly owned, the house will likely go to the co-owner. However, if the home is solely owned, it will go through the state’s intestacy process to determine what happens to it. Generally, a house will go to a spouse, surviving children, or a closely related family member.  

What Happens to My Child if I Die Without a Will?

As mentioned in a previous section, if you pass away without a will in place and you’re unmarried, the court selects a guardian for your children based on state laws. However, what about your assets? Will your children get those? 

Generally, whether you’re married or divorced, your spouse gains full custody (if eligible). However, things can get a bit complicated in the case of blended families where there are children from previous relationships. 

Furthermore, each state prioritizes a child’s “best interest.” This means that they may decide that your child should not be under the guardianship of anyone in your family. Concerning your assets, a single parent’s estate is passed down to your children, eventually. The court will appoint a “conservator” to manage those assets until your children are 18 or 21, depending on the state. 

Transfer of Property After Death without a Will

In some cases, the property of a deceased person can be transferred via an affidavit of heirship. The affidavit of heirship is a document signed by two witnesses who attest to your wishes for the distribution of your property post-death. 

The witnesses must not receive any benefit from the property and must be knowledgeable of the desires of the deceased. If they are not truthful, they can potentially face perjury charges. Typically, witnesses of an affidavit of heirship are required to: 

  • Have a relationship with the deceased person
  • Not gain financial benefit from the estate
  • Know the true identity of the deceased person
  • Know the true identity of family members and heirs 

An affidavit of heirship can be used for homes, mobile homes, and cars. However, laws vary from state to state. So, it’s in your best interest to consult with an estate planning lawyer to better understand the requirements. 

What Happens to a Bank Account When Someone Dies Without a Will?

The answer to that question depends on several factors. If the deceased person has named a beneficiary or pay-on-death (POD) recipient for their account, the funds will go to them. However, all debts must be paid first. 

If the deceased person does not name a POD or beneficiary, then the account goes through the state’s intestacy process. Generally, that means that the funds go to the deceased’s spouse or children. If neither exists, then the assets will be split among closely related family members. If there are no family, spouse, or children, the account will be forfeited to the state. 

Why Having a Will Is Important 

Unfortunately, the majority of Americans don’t have a will in place. Without a will, you are sure to leave behind grief for your loved ones. In case you’re not yet sold on the importance of a will, check out these reasons why having a will is so important. 

  1. You get to decide what happens to your estate.
  2. You choose the guardian for your children, not the state.
  3. Limit complications from the probate process.
  4. Fewer taxes.
  5. You choose a person to execute your will.

If you own property and other assets, having a will is the first step. Most lawyers recommend creating a comprehensive estate plan to cover you and your family in both the short and long term. 

Should You Hire an Estate Planning Lawyer? 

The answer to this question depends on many factors. If you have a relatively simple estate, don’t own much property, and don’t have many heirs, then it’s feasible to write a will on your own. However, if your portfolio and financial affairs are a bit more complicated, hiring a lawyer can be beneficial. 

Hiring an estate planning lawyer helps ensure that your will and other parts of your estate plan are detailed, in alignment with the law, and your estate assets go to the people you want. Your lawyer also ensures there are no mistakes within the will that could lead to a dispute during the probate process. 

If you would like to hire a lawyer to help you with your will but are worried about costs, there are ways to get affordable estate planning help. Learn more below. 

Contact Unbundled Legal Help for Affordable and Flexible Estate Planning Legal Help

Most estate planning lawyers are not cheap. They typically charge anywhere from $1,500 – $3,000 upfront, plus an additional hourly rate on top of that. If that sounds too expensive to you, you’re not alone. Millions of Americans feel the same way, hence the high rate of people without a will. 

With unbundled legal help, you can hire an estate planning lawyer to take care of the complex parts of your estate planning needs, and save money by taking care of the rest. For instance, you can draft your will, then hire an unbundled lawyer to review it. 

Fees for unbundled lawyers start as low as $500 – $1500. If your estate planning needs are complex, they offer full representation at affordable rates. 

Before spending thousands of dollars upfront or worse yet, deferring an estate plan, get in contact with an unbundled estate planning lawyer in your area, and learn how your estate planning needs can be managed by an unbundled lawyer.

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