Estate Planning Pitfall: You die without having drafted a will

Adler Pollock & Sheehan P.C.
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Adler Pollock & Sheehan P.C.

Where there’s a will, there’s a way — a way to pass assets to your heirs in the manner in which you want. However, if you die without a will (or an appropriate trust) — “intestate” in legal parlance — your assets will be distributed according to state law, regardless of your intentions. This also increases the possibility of a contest in the courts.

The division of your assets in your estate is based on the laws in the state where you reside. However, if you own assets in a different state, such as a vacation home or investment real estate, the laws of that jurisdiction apply to those assets.

Although state laws vary, assets owned in your name generally will be split among heirs, which may include a surviving spouse, children, parents and siblings. The rules might be stretched to more distant relatives if immediate family members can’t be found. If there are no surviving heirs under state law, your entire estate will go to the state.

Of course, if you own property jointly with someone who has survivorship rights, such as your spouse, legal ownership is transferred to the joint owner. Similarly, if you’re married and reside in one of the handful of community property states, any property acquired during your marriage goes to the surviving spouse.

It can get more complicated for estates of those who were married at the time of death and had children from a prior marriage. Generally, those children will be entitled to share in the estate with the surviving spouse.

Best approach: Create a legally valid will (or set up an appropriate trust) spelling out your wishes. This can avoid the potential pitfalls of dying intestate.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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