Trusts and Estates

What Happens When You Don't Have a Will?

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No Last Will

Not having a will when you die might not be a big deal if you made a plan to distribute your property with other estate planning tools, like a living trust. However, if you die without a plan for your property, your state will distribute your property according to its laws of “intestate succession.” And you may want to make a will for other reasons, as well – like naming an executor or naming guardians for children.

State Laws Will Decide

Each state has a set of laws that determines who should get property if a deceased person does not have a will or other plan to for distributing property. Who gets the property depends on the state and the situation of the deceased person. Generally, intestate laws give property to the deceased person’s closest relatives – a spouse, children, parents, siblings, etc. If you want to know how what would happen to your property if you die without a will, look up your state’s law.

The State Could Get Your Property (But Probably Won’t)

When a probate court follows the state’s laws for intestacy, but can find no living relative to inherit a deceased person’s property, the goes into the state’s coffers. But this rarely happens – even if you don’t have living parents, children, siblings, aunts, uncles, nieces, or nephews, the court will try to find some distant cousin to give your property to before it goes to the state. So the worst case scenario probably won’t happen, but if you want any say about who should get your property, you should make an estate plan.

A Will Is Just One Tool, You Have Options

You don’t have to write a will to make a plan for your property. In fact, a will should just be one tool in your estate planning tool box. You can also use a living trust, beneficiary designations, pay on death accounts, joint ownership, and transfer on death deeds (in some states). And all of these tools, also don’t have to go through probate.

You Should Have a Will Even if You Have a Trust

Even if you transfer most of your property though a living trust or other estate planning tools, you should still have a backup will. If you don’t, any property that you have that doesn’t get passed to beneficiaries through those other tools, will be passed via intestacy laws.

And even if you don’t use your will to transfer property, you can use it to:

  • name an executor to lead the charge in wrapping up your estate
  • name personal guardians to look after your children, and
  • property guardians to manage your children’s property.

Community Property

If you die without a will and live in a community property state, like California, your state's intestate succession rules may be significantly different than those in most other states. In a community property state, you and your spouse are each considered to own half of all property acquired during marriage. Your surviving spouse usually inherits your half of the community property.

A Trusts and Estates Lawyer Can Help

The law surrounding the property of those who die intestate can complicated. If you have questions, or want help planning your estate get help from a qualified trusts and estates lawyer.

Questions for Your Lawyer

  • Can I use my will to disinherit my child?
  • According to my state’s laws, what will happen to my property if I don’t make an estate plan?
  • My cousin recently died without a will. I was his best and closest friend, and he was estranged from his parents – will they really get all of his property?
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