The Horrors of Dying Intestate

October brings fall, pumpkin-spiced everything, and macabre things. Ghosts, ghouls, and goblins may Monster Mash through your mind; however, when I think of something truly terrifying, it’s dying without an estate plan…it’s the trick in Trick or Treating. Although everyone knows that they should treat their family to a comprehensive Estate Plan, many folks experience feelings of superstition and dread when considering planning for the end of their life, as if by planning for death, they invite it. The chilling truth is that most of us have no idea how much time we have and when we will depart our mortal coil. Accidents happen, and an alarmingly high number of people die without an Estate Plan, which can have disastrous results.

The excuses for failing to create a plan run the gamut, from being young or childless to being single or refusing to face mortality. Many people believe that if their assets do not exceed a certain amount, then they needn’t worry about an estate plan. Whatever the reason, failing to create an Estate Plan causes chaos at your death, leaving your loved ones in the lurch. Inevitably, those loved ones will need to attend to your legal affairs such as paying your debts and transferring your assets, and, without a clear set of instructions that a comprehensive estate plan provides, you are leaving a mess for those grieving your demise.

If you die without a Will or Revocable Trust, that’s called dying intestate. It’s so common that states have created statutes to address the issue of intestacy. Wills and Revocable Trusts address numerous issues such as who will care for minor children or pets, how and when assets will be distributed, who will oversee distribution of those assets, and how taxes will be paid. If you die without any Estate Planning documents in place, state statutes will determine how and to whom your assets will be distributed without any input from you or the loved ones you leave behind. Many states’ intestacy laws give only a portion of assets to the surviving spouse, making no provisions for anyone to whom you were not legally bound. Those same statutes give the remainder to descendants, without regard for the needs of individual recipients. This includes those who may have special circumstances, such as receiving governmental benefits, often leaving these individuals in the lurch.

If you die intestate, then your estate would need to go through probate. An individual would petition a court for appointment as executor, personal representative, or administrator, which would give that individual legal authority to collect and distribute your assets. That individual likely would need to retain an attorney to understand and navigate the complex court system. A judge oversees the many steps involved in this public probate process. The judge would issue Letters of Administration or similar documents that give the executor power to marshal the assets of your estate. If your family disagrees about who should serve in that capacity, then the court would make that decision and could appoint a total stranger. Usually, statutes entitle the executor to take a commission or fee as compensation for their services. Imagine, a stranger and the public knowing your personal business and then that stranger being paid out of your money to give your assets to the people whom you didn’t even select. There’s something incredibly unsettling about that.

The treat in this tale of woe is that you control your destiny, at least with respect to your Estate Plan. By contacting an attorney, you can accomplish your goals, keep your estate out of probate with an Estate Plan that includes a Revocable Trust and a Will, and preserve your legacy. As part of the estate planning process, your attorney will guide you through the perils of failure to plan and make suggestions and recommendations about the legal documents necessary to accomplish your goals. Most people feel relief and well-being upon executing their Estate Planning documents. Creating an estate plan allows you to determine who will care for your minor children, how your assets will be distributed to those children, who will control those distributions, when those distributions should be made, and whether distributions should be made to individuals, charities, schools, or museums. A comprehensive Estate Plan prevents disputes among beneficiaries and provides for tax planning, if appropriate. With a properly created and funded estate plan, you (not a Court) controls what happens to your children, your pets, and your property after your death.

Dying without a Will can haunt your family years after your demise. Even if this ghoulish endeavor gives you the chills, it’s important to undertake this task before it’s too late. Financial trouble, delayed distribution of assets, and stress are just a few of the frightening things in store for your loved ones if you die intestate. Most individuals find the probate process as torturous as touring a sanitorium; however, you can circumvent it. Avoid the tragedy of intestacy by creating a set of instructions regarding what you want to happen when you die, otherwise known as an Estate Plan.