Sometimes people seem to think that if they don’t plan for death, it just won’t happen. In fact, 58% of American adults have no will, no trust, and no estate plan at all, according to a recent study by Caring.com. Unfortunately, whether you plan for it or not, death is inevitable.
If you have no plan, your state of residence has a plan for you, it’s called “intestacy.” With intestacy, your assets go to those the state has pre-determined. They may or may not be the people whom you love and who love you. Each state’s intestacy laws are slightly different. But, typically, a single person’s assets will go to their blood relatives. If they’re married, a percentage typically will go to their spouse, as well.
This can be very complicated, especially in blended families. Unfortunately, sometimes this can lead to unjust outcomes. For example, Marcelle Harrison was raised by her step-father in her home and lived in the house for decades. When he was sick, she was his caretaker. She was there for him around the clock taking care of his needs during his final illness.
However, when he died, she discovered that he didn’t have an estate plan. Under the state’s intestacy laws, his assets, including the house, would go to his distant blood children who didn’t take care of him in his dying days. But even though he raised Marcelle and she took care of him in his dying days, she would receive no part of the house. Here’s a link to more information about Marcelle’s story.
Wouldn’t it make more sense to take control of your legacy and your loved ones’ inheritances so they happen the way you want? The state intestacy statute is a one-size-fits-all solution. It doesn’t take into consideration that one child may be estranged and another cared for the decedent around the clock. But you can take control of your own situation.
A will overrides state intestacy statutes and provides your own specific instructions in the probate process.
A trust avoids the probate process altogether. Not only does it distribute assets to whom and how you want, it provides privacy which isn’t possible in the probate process. However you choose to plan, just do it! One-size-fits-all solutions rarely fits anyone well.
Stephen C. Hartnett, J.D., LL.M.
Director of Education
American Academy of Estate Planning Attorneys, Inc.
9444 Balboa Avenue, Suite 300
San Diego, California 92123
Phone: (858) 453-2128
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