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Home » Blog » Intestacy is Possibly the Worst Mistake for Families of Modest Means

Intestacy is Possibly the Worst Mistake for Families of Modest Means

October 12, 2022 •  Law Office of A. Lee Shaw, PLLC
Thinking About Not Writing a Will Because You Believe You Don’t Have Enough Resources?  Think Again. Writing a Will is something most of us know we eventually have to do, but none of us really want to start.  Some people believe it is too complicated.  Other people don’t want to think about death.  Some folks believe that the law […]

Thinking About Not Writing a Will Because You Believe You Don’t Have Enough Resources?  Think Again.

Writing a Will is something most of us know we eventually have to do, but none of us really want to start.  Some people believe it is too complicated.  Other people don’t want to think about death.  Some folks believe that the law will step in and either their spouse will inherit everything if their spouse is still living, or if not, it’ll all be divided among their children.  Depending on where you live when you die this simply isn’t true.

            When someone dies without a Will, the courts step in and apply the rules of intestacy.  Each state has its own set of rules and those rules are different depending on where you live when you pass away, and perhaps what your family looks like.

            So?  You ask.  What does it matter?  

            Depending on your circumstances it can matter quite a lot.  For example, in some states if you die without a Will, your surviving spouse may only be entitled to a portion of your estate.  The rest of your estate may be divided between your living children.  This can be particularly disastrous for families of modest means.

            For example:  Suppose a couple is married for many years.  One spouse is younger than the other.  The older spouse is on his second marriage, and the younger spouse is on her first marriage.  They neglect making wills.  When the older spouse dies, the laws of intestacy in his jurisdiction provide his widow with a claim to half of the real estate and half of the personal property.  The rest is divided among the children. 

            That sounds fine however, suppose the deceased had children from his first marriage but none from his current marriage.  Depending on the relationship between his children and his widow, she may lose her home, half of the household goods, and perhaps even the car.

            Other situations where it’s important to plan is in situations where perhaps one of your children is married to a spouse who may not treat your adult child the way you think your child should be treated.  If you pass away and your child inherits from your estate, that inheritance may be considered a marital asset, and half of that inheritance may be available as an asset that is eventually divided should your child come to his senses and divorce the ne’er do well spouse of his.

            It’s not hard to imagine other scenarios where allowing the state to step in and make decisions about your estate can be problematic.

            Estate planning can seem like a daunting task.  We focus our practice on estate planning, trusts, and elder law. We’re happy to meet with you and discuss your individual situation with you and help you plan for the future you want.

            Book a call with one of our estate planning attorneys.

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