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. Although the pandemic encouraged people to consider what would happen at their death, many folks believe that they “have time” or are overcome with 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 lead to 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, assets will need to be transferred and, without a clear set of instructions that a comprehensive estate plan provides, you are leaving a mess for those grieving your demise.
Dying without a will or trust is called dying intestate. It’s so common that states have created statutes to address the issue of intestacy. Wills and trusts address numerous issues such as who will care for minor children or pets, how and when assets will be distributed, who will oversee the 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 and 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.
If you die intestate, then your estate will likely need to go through probate. An individual will petition a court for appointment as executor, personal representative, or administrator, which will give that individual legal authority to collect and distribute your assets. That individual likely will 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 will 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 will 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 own destiny, at least concerning your estate plan. By contacting an attorney, you can accomplish your goals, keep your estate out of probate and die testate, that is with an estate plan such as a Will or trust. As part of the estate planning process, your attorney will guide you through the perils of failing 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. Working with a qualified estate planning attorney will allow you to determine what will happen 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 family 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. Take the fright out of October by contacting an estate planning attorney so that you can enjoy the creepiest time of the year knowing that you have addressed the inevitable.
Tereina Stidd, J.D., LL.M. (Tax)
Associate Director of Education
American Academy of Estate Planning Attorneys, Inc.
9444 Balboa Avenue, Suite 300
San Diego, California 92123
Phone: (858) 453-2128