When a person dies without having a will, that individual is said to have died “intestate”. In this instance the governing state’s intestate succession laws come into play, and these laws determine what members of the decedent’s family inherit the decedent’s estate, and in what portion or percentage those inheritances occur.
When you think about those things that make up an estate, it’s much more than that which so obviously comes to mind like, for example, a house which the decedent owned. An estate can be made up of a property or many properties, land, interests in investments and business, bank accounts, stocks, bonds, furniture, jewelry, and other possessions. In addition, having a Will allows you the opportunity leave gifts to charitable organizations and friends (to name a few).
Having a Will affords an individual the opportunity to distribute their estate in whatever manner they see fit, and most assuredly in a different manner than the state will distribute it if you pass away intestate. Therefore, having a Will empowers you in the decision-making process and guarantees that your wishes are followed as directed.
Furthermore, a Will does more than distribute property. Having a Will allows you to name an Executor. The Executor plays a vital role in wrapping up any loose ends and ensures that all of your wishes and desires are carried out. Also, if you have children at the time of your death who have not reached majority age, a Will establishes who the guardian(s) for your children and their property (or inheritance) will be; and if at the time of your death you are carrying debt, a Will may assist with forgiving that debt.
Finally, a Will may reduce conflict among family members in that it clearly outlines your choices, thereby alleviating speculation over what you might have wanted. After someone passes away, there are many emotional feelings that your loved ones are dealing with, including the grieving process for your loss. This can result in people having hurt feelings; infighting among family members; and in our society where the divorce and remarriage rate with blended families is so high, dying intestate only invites trouble.
What If I’m Single?
Even if you’re single, a Will is still important. If you pass away when you are single and are childless, most likely your parents inherit your entire estate (if they are both living). If one parent is living, it’s typically divided among your siblings (including half-siblings) and your surviving parent. If there are no living parents, then your entire estate will most likely be divided among any brothers and sisters equally. In extreme cases where there are no surviving parents, brothers, sisters, nephews, or nieces, then the relatives on your mother’s side would inherit 50% of the estate, with the other 50% to the relatives on your father’s side.
On the other hand, you’re single and have children, then generally your entire estate will pass in equal shares to your children. If any child’s death precedes you, and that child has children, then your deceased’s child’s share goes to your grandchildren.
What If I Have a Domestic Partnership?
Special laws apply to Domestic Partnerships, and not all states recognize a Domestic Partnership. For states that do recognize a Domestic Partnership, generally speaking, if you pass away without a Will and your Domestic Partner survives you, he/she stands to inherit the same percentage as a surviving spouse would have. However, if you live in a state which does not recognize Domestic Partnerships, all the more reason to have a Will where you can set forth any inheritance you want to pass through to your Domestic Partner.
What If I Am Unmarried But Living Together?
Not having a Will may be devastating in this circumstance as intestate laws only recognize relatives. Therefore, the surviving unmarried partner doesn’t stand to inherit anything from the estate without a Will. Having a Will clearly affirms the decedent’s intentions upon death and protects the decedent’s “significant other”.
Revocable Trusts (also known as Living Trusts)
Concurrent with the preparation of a Will, we recommend creating a Revocable/Living Trust. A Revocable/Living Trust protects your assets and allows you (the “grantor”) to make changes to provisions within that Trust at any time.
Whereas a Will is effective at the time you pass away, a Trust becomes effective at any given date in time you specify. When creating a Trust, you appoint a Trustee (the person in charge of managing your assets), and typically you appoint yourself, unless you are unwilling or unable to be responsible. You can always appoint yourself as Trustee and designate a Successor Trustee (a back-up person) who will step in and take over on your behalf.
There are many benefits to creating a Trust, including the fact that Revocable/Living Trusts don’t involve the judicial (court) system. Simply put, once you pass away, your estate is a matter which is handled privately, and is not required to go through probate (the court system where everything becomes public record).
Once a Trust is created, however, all assets must be transferred into the trust (i.e. if you purchased a house with your spouse and had the Deed recorded in your individual names, the Deed for the home would need to be transferred into the name of the Trust and recorded with the County Recorder). Also, any newly acquired assets after creation of the Trust must either be placed in the name of the Trust or transferred into the Trust. All of these tasks are performed as part of our estate planning package.
Advance Health Care Directive
This is a document created “just in case” you become unable to make your own decisions regarding healthcare. Typically, this happens if you become incapacitated or seriously or terminally ill. Most people don’t like to come to terms with their mortality, and these types of decisions are difficult to make. However, it’s always better to be on the safe side and be prepared, with the hope that you’ll never have to use it (expect the worst but hope for the best). We guide you through a set of written instructions which include your specific requests in terms of your anticipated health care.
You can be as specific as you’d like and set forth the exact healthcare you wish to receive (i.e. whether or not you want to receive whatever measures are necessary to keep you alive; whether you want to be kept alive for a certain period of time before being taken off of life support; and so on).
Lastly, you have the option to consider tissue and organ donation at the time of your passing. Organ donation can save hundreds of thousands of lives, and the most common transplants include, but are not limited to, the heart, liver, lungs, bone marrow, kidneys, skin and cornea.
Power of Attorney
A Power of Attorney (also known as a Medical Power of Attorney) allows you to appoint someone you trust to act as your representative or agent, and this individual will make your health care decisions for you when you can’t. The Power of Attorney goes hand-in-hand with the Advance Health Care Directive.
Having a Power of Attorney doesn’t mean your appointed person has carte blanche to step in willy-nilly and make decisions for you. Before the Power of Attorney can be utilized in guiding medical decisions, your physician has to certify that you are unable to make your own medical decisions, and that your proxy/agent can open a line of communication with your health caregivers on your behalf in order to make decisions according to the wishes or directions you have set forth in your AHCD. If, however, your wishes in particular unique situations aren’t known, your proxy/agent will make decisions based upon what he/she thinks you would want. If you regain the ability to make your own medical decisions, your proxy/agent is not allowed to continue to make medical decisions on your behalf.
The person you name as a proxy or agent should be someone who knows you well and someone you trust to carry out your wishes. Your proxy or agent should understand how you would make decisions if you were able and should be comfortable asking questions and advocating to your health care team on your behalf. Be sure to discuss your wishes in detail with that person. You may also choose to name a back-up person in case your first choice becomes unable or unwilling to act on your behalf.
What About a Living Will?
A Living Will sets forth the type of medical treatment you would want (or not want) to undergo in situations where you are unable to advocate for yourself. The Living Will would define under what circumstances and conditions you desire medical attention in attempting to either end or prolong your life (i.e. type of tests or treatment, feeding tubes, life support, DNR directives, IV fluids, etc.). The positive thing about a Living Will is that you may end or revoke it at any time.