When You Die Without a Will or Trust, the State Decides

It's a question many people put off thinking about: "What happens if I die without a will or a trust?" The short and serious answer is, you lose control. Instead of your wishes being carried out, your estate will be distributed according to your state's laws of intestacy.

The term "intestate" simply means dying without a valid will or trust. In this scenario, the court takes over and decides who inherits your assets—and it's not always who you'd expect. While the laws of intestacy are designed to follow a logical hierarchy, they can't account for your unique family dynamics, personal relationships, or specific desires.

How Intestacy Laws Typically Work

While laws vary significantly from state to state, here are some common scenarios:

• If you are married with no children: Your spouse will likely inherit your entire estate — but you’re leaving a lot to chance.
• If you are married with children: This is where it gets more complicated. In many states, your spouse may not inherit everything. Your assets could be divided between your spouse and your children, which can create significant financial and legal headaches for your surviving family — especially if you have a blended family. 
• If you have children but are not married: Your children will likely inherit your estate, often in equal shares. You have no control over who gets what. 
• If you have no spouse and no children: The court will look to your other living relatives, starting with your parents, then siblings, and so on.

These laws do not recognize unmarried partners, stepchildren (unless legally adopted), or close friends, no matter how much a part of your life they were. Your longtime partner could be left with nothing, and your favorite niece could be completely left out.

The Problem with Probate

Dying without a trust almost guarantees your estate will go through probate. What is probate? It's the court-supervised legal process of administering your estate, which involves validating your will (yes, you still have to go through probate if you have one), identifying and inventorying your assets, paying your debts and taxes, and finally distributing the remaining assets to your heirs.

While it's a necessary legal procedure to ensure a proper transfer of property, probate is often a terrible experience for your grieving family. Here's why:

• It's slow and expensive. The probate process can take anywhere from several months to several years, depending on the complexity of your estate, and during that time, your assets are tied up. Legal fees, court costs, and administrative fees can quickly add up, sometimes consuming a significant portion of the estate's value—money that should have gone to your beneficiaries.
• It's a matter of public record. The probate process is public. All the details about your estate—the value of your assets, your debts, and who inherits what—are made available to the public. This lack of privacy can be deeply uncomfortable for families and can even make your heirs a target for scams or unwanted solicitations.
• It can cause family disputes. When the court takes control, family members may feel left out or disagree with the legal distribution, leading to costly and emotionally draining legal battles. Your loved ones will be forced to spend time and money in court instead of focusing on healing.

A common and highly effective tool for avoiding the hassles of probate is trust-based estate plan. While a will provides instructions for the court on how to distribute your assets, it doesn't prevent your estate from going through the probate process. A trust, on the other hand, holds your assets for you while you're alive and allows them to be transferred directly to your beneficiaries upon your death without court intervention. This distinction is crucial. By funding a trust with your assets, you can ensure a much faster, more private, and less expensive distribution to your loved ones, sparing them the public, frustrating, and costly burdens of probate.

The Consequences of Not Planning

Dying without an estate plan can lead to:

• Family Disputes: When the state decides who gets what, it can ignite bitter conflicts among family members, turning grief into a legal battle.
• A Lengthy and Expensive Process: The probate court process for an intestate estate can be long, public, and costly, with legal fees and court costs eating into the hard-earned assets you intended to go to your family.
• Lack of Control Over Guardianship: If you have minor children, you lose the ability to nominate a guardian for them. The court will appoint someone, and it may not be the person you would have chosen.
• Your Assets Go to the State: In the very rare case that the state cannot find any legal heirs, your assets could be turned over to the government.

The Importance of Professional Guidance

While the idea of using a DIY platform or consulting a financial advisor for your estate plan might seem convenient, it's a decision that could have serious consequences. Estate planning is a specialized area of law that involves navigating complex state-specific statutes.

An experienced estate planning attorney will:

• Ensure Your Plan is Legally Sound: They will draft documents that are valid under your state's laws, preventing potential challenges down the road. The only two people that can legally create your plan are yourself, or a licensed attorney. 
• Offer Experienced Advice: They can help you understand all of your options, including wills, trusts, powers of attorney, and healthcare directives. They will explain the implications and outcomes of your decisions, making sure that you have all the information you need to make a good decision.
• Plan for Your Needs: The right estate planning attorney will listen to your unique situation and help you create a plan that reflects your specific wishes, not just a one-size-fits-all template that they pull off the shelf for all of their clients. 

A financial advisor can provide advice on managing your assets, but they are not qualified to provide legal counsel. Similarly, online platforms can be a starting point, but they can't offer the personalized, legally binding advice of an attorney. That’s why Oath is a joint effort between estate planning attorneys and fiduciary advisors — when you work with us, you get a unified plan.

In the end, creating a will or trust isn't about planning for your death; it's about taking control of your life and protecting the people you love. Don't let the state decide your legacy — take the first step today and schedule your free Estate Planning Discovery Call.

_{Disclaimer: This blogpost provides general information about estate and financial planning and is not intended as legal or financial advice. It’s essential to consult with a qualified estate planning attorney and financial advisor to discuss your specific needs and create a plan that’s right for you.}