CONSEQUENCES OF DYING WITHOUT A WILL (“INTESTACY”)
♦ Spouse’s share of probate property (“probate property” is property held by the deceased person in his or her own name at death, and property or benefits payable to that person’s “estate”): If there are surviving children, the surviving spouse is entitled to only one-half of the deceased spouse’s estate (plus $50,000 if all the surviving children are also children of the surviving spouse).
♦ No opportunity to designate the desired “personal representative” (the current legal name for what is often referred to as the “executor”): Surviving family members will have to decide—or fight over—who will administer the deceased person’s estate.
♦ Payment of a bond premium: Without a will provision exempting the personal representative from being bonded, whoever administers the estate will have to procure a bond from a commercial insurance company and pay the applicable premium, which can be several thousand dollars or more (the amount depends on the value of non-real property in the estate).
♦ Costs and other issues related to Probate Court filings: A will can exempt the personal representative of an estate from various filings otherwise required by law to be made with the Probate Court, including an inventory of the estate. Such filings generate legal and other fees as well as Court costs, and the filings (such as the estate inventory) become matters of public record.
♦ Requirement to obtain Probate Court permission for certain actions: A will can clearly grant certain powers to the personal representative of an estate. Without the grant of these powers under a will, the administrator of the estate must obtain Probate Court approval for certain actions, such as the sale of real property in the estate, resulting in additional cost (legal, Court fees, etc.) and delay.
♦ No opportunity to appoint a guardian or custodian for minor children: The decisions about who will raise minor children and manage their assets will be left up to surviving family members and the court system.
♦ No opportunity to delay outright distributions of property to children past legal majority: A will can provide for property to pass for the benefit of children or other beneficiaries in trust instead of outright, and the trusts can last to any designated age (for example, 30 or 35) or even for life.
NOTE: Some of the above issues can be addressed by joint property arrangements or beneficiary designations, but these can generally only apply to a certain extent and/or in certain situations, so a will is normally important to coordinate everything and address all contingencies.