Brown & Associates - Attorneys & Counselors at Law, P.L.L.C.

WHAT HAPPENS IF I DIE WITHOUT A WILL?
(12/24/00)

This is a common concern voiced by those who come to our office or attend one of our seminars. Usually the client isn't concerned for herself, she's concerned because her mother, father or some other close relative has been putting things off and still doesn't have a valid Will or estate plan.

What effect will it have if you (or loved ones) die without a will? The simple answer is that no one dies without a will. If you don't execute one yourself, the state prepares one for you. It spells out exactly who gets what depending upon the particular facts and situation. The only exception to the application of this "statutory will" is if you had a prenuptial marriage contract. In that case, the contract will override the statute. If you don't have a prenuptial agreement, the statutory rules will be followed. They are relatively simple.

"Who Get's What?"

The answer to this question depends upon your own particular situation. Let's take a specific set of facts and see how they play out.

If you are married and leave behind a surviving spouse and children, your spouse will receive one-half of your property (whether separate or joint industry property) and the remaining one-half will pass to your surviving children in equal shares. Let me back up a minute and explain what I mean by joint industry property. It is anything acquired during your marriage as a result of your joint efforts or income. Even if you were the only one employed, the income you earned during your marriage is considered joint industry property.

"Does It Matter If I Have Children From a Prior Marriage?"

Yes. If you die leaving behind a spouse and children, but one or more of the children is a child of a prior marriage, the rules are significantly different.

In this case, your spouse will receive one-half of the joint industry property and your children will receive the other half. Your remaining property (separate property) will be shared equally by your spouse and children.

This means if you left behind a wife and three children, at least one of whom was not a child of this marriage, each of them (your wife and each of your children) would receive 1/4 of your separate property.

"What If One Of My Children Predeceases Me?"

You've thrown another twist at me. If one of your children predeceases you and leaves children of his or her own still living (your grandchildren), the rules shift again. If that happens, your grandchildren will receive the portion of the estate that the parent (your deceased child) would have received if living. This is commonly referred to as a per stirpital or per stirpes distribution.

Let's apply this rule to the above situation. You die leaving behind a wife, two surviving children (one of whom is from a prior marriage), and two grandchildren of your deceased child. In this case, the division of assets is as follows:

- Your spouse receives one-half of your joint industry property and 1/4 of your separate property;

- Your two surviving children each receive 1/6 of the joint industry property (their ½-interest divided by 3) and 1/4 of your separate property;

-Each of your grandchildren receives 1/12 of the joint industry property (½-interest divided by 3 children and further divided by 2 grandchildren) and 1/8 of the separate property (each receives ½ of the amount their parent would have received).

As you can see, the rules of decent and distribution can become extremely complicated. You can imagine what happens if you aren't married or if you don't have children or if your parents are deceased, ad infinitum. The potential questions and permutations are endless.

This is why it is so important to have a current and comprehensive estate plan with appropriate Wills, Trusts (when needed) and other ancillary documents.

"Can I Be Held Liable For My Actions As Personal Representative?"

The simple answer is Yes. Remember, if you are appointed personal representative or administrator of an estate, you are serving in a fiduciary capacity and held to a very high standard of care. That's why you need to consult early with a professional estate planner to ensure you know what you need to do and when. The attorney will walk you down the path and make sure you stay out of harms way.

Any time you lose a loved one, the situation is wrought with problems. There is the emotional distress of losing someone you cared about very deeply. This is complicated by your desire to take care of the needs of the surviving family members, who may not be able to function effectively at that time. You will want to safeguard the decedent's property, take care of any pets left behind, terminate subscriptions, plan the funeral, get announcements in the paper, and handle a myriad of details you never anticipated.

At a time of emotional stress, the last thing you need is to be worrying about your potential personal liability, wondering if you are doing everything that needs to be done, and struggling to keep your head above water as you sort through personal and financial papers.

A professional advisor can help shift the burden, ease your concerns, and make your time at the courthouse and your dealings with the IRS relatively painless.

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