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Written by: Erin Caplin
If you die without a will or a trust, there can be significant legal and financial implications depending on your state. The lack of a will or a trust can lead to a costly, time-consuming, and complex probate process that may leave your estate and family in a difficult situation.
Without a will or proper estate planning, your assets may be distributed according to state laws, which may not align with your wishes, and certain unintended heirs may receive your assets instead.
Allow our New Jersey estate planning attorneys to help you take a look at a few things that can happen should you die without a will.
What is a Will?
A Will is an important legal document that dictates an individual’s wishes regarding his or her estate and the distribution of assets after death. A Will allows the individual to determine who will receive assets, such as money, property, and personal items. Wills can also appoint guardians for minors and direct how certain finances are handled.
Having a Will in place before you die ensures that your last wishes are met, that your assets are divided in the manner you wish, and that your family and friends are provided for. However, sometimes death may come sooner than expected and leave the deceased without a Will.
Without a Will, the state would decide who receives your assets and how they are distributed through intestacy, which could have unintended consequences.
#1 –The State Decides Who Gets Your Property
When someone dies without a Will or a trust, it is said that they die “intestate," and the deceased’s property and assets become subject to the intestacy laws of the state.
For instance, the State of New Jersey has predetermined laws that outline who will receive the deceased’s property if there is no Will. The property will generally be distributed to the decedent’s surviving spouse and children. If there is no surviving spouse or children, the property may be divided among other family members like siblings, parents, or more distant relatives.
It's important to note that if the decedent was married but legally separated, the estranged spouse may still be entitled to a portion of the property. State intestacy laws also apply to unmarried couples, meaning that even if you were in a committed relationship with your partner for many years, your partner might not have any legal right to your property if you do not have a Will.
This means that your hard-earned possessions could end up in the hands of strangers instead of the people or causes you would have chosen.
#2 –The State Decides Who Gets Your Money
If you die without a Will or a trust, your money and financial assets will be distributed according to your state's intestacy laws.
For example, in the State of New Jersey, these laws dictate that if you do not have children, or if your children are the mutual children of you and your spouse, and your spouse has no other children, then your entire estate will go to your surviving spouse.
However, if you have a spouse and you have children from another relationship, or if you have children and your spouse has children from another relationship, your surviving spouse will only receive 25% of your estate (at least $50,000 but no more than $200,000) plus one-half of the remaining balance. The other half will be divided equally among your children.
If you do not have any spouse, but you have children, then your entire estate will be distributed to your children. But if you do not have any children, it will go to your parents, or if they are no longer living, then to your grandparents, and then to siblings and issue of deceased siblings. If you do not have any living relatives, then your entire estate will go to the State of New Jersey.
If you have debts, such as credit card debt or unpaid loans, those debts must be paid off before any remaining funds are distributed. Sometimes, this could leave little or no money for your beneficiaries. To ensure this does not happen, it's important to create a Will or a trust to ensure that your wishes are respected and that all debts are properly taken care of before anything else is done.
#3 –The State Decides Who Gets Your Children
If you die without a will, your state will decide who will take guardianship of any minor children you may have.
For those in New Jersey, if no will is presentto appoint a guardian for minor children, the surviving parent of the childrenis first in line for guardianship rights. If the surviving parent is deemedunfit for guardianship, a court-appointed guardian may be assigned to care forthe children.
If you have adult children and do not have a Will in place, they may receive a portion of your estate assets without the appointment of a guardian, however, without a Will, you won’t be able to specify how the shares for children should be managed, which could be a problem if those children are very young adults and not yet ready to manage their own finances.
#4 –Your Local Probate Court Executes Your Last Wishes
If you die without a Will or a trust, your local probate court will follow the rules of intestate succession, which may not align with your wishes.
The court will take charge of the process, appointing an administrator to distribute your assets to designated heirs according to the law. The probate court can also appoint a conservator for minors and vulnerable adults who cannot manage their own affairs.
The court-appointed estate administrator will likely have to post a bond, at the expense of your estate, and report all of your assets and information about your heirs to the court.
Related: What Makes a Complete Estate Plan?