What Happens if You Die Without A Will?
Your state’s laws of descent and distribution will determine who inherits your property if you die intestate (without a will). These regulations differ by state, but in most cases, your assets will be distributed to your spouse and children, or to other family members if you don’t have any. The legislature’s judgment as to how most people would dispose of their estates is generally reflected in a state’s plan, which includes safeguards for specific beneficiaries, particularly minor children. That plan may or may not reflect your true goals, and some of the built-in safeguards may not be required in a happy family. With a will, you can change the state’s default plan to fit your wishes.
It also allows you to exert control over a variety of personal decisions that are not addressed by wide and general state default regulations.
What Does a Will Do?
A will directs the distribution of certain assets you own at the time of your death, and you can normally dispose of such assets in any way you like. Most states’ compelled heirship rules, which bar you from disinheriting a spouse and, in certain situations, children, may limit your ability to dispose of property as you see fit. Many states, for example, have spousal rights of election statutes that allow a spouse to claim a specific interest in your estate regardless of what your will (or other documents addressing your property distribution) says.
Your will has no bearing on the disposition of your property, which is governed by beneficiary designations or titling and thus passes outside of the probate estate. Property titled in joint names with survivorship rights, payable on death accounts, life insurance, retirement plans and accounts, and employee death benefits are examples of such assets. These assets pass to another person when you die, and your Will does not apply to them unless they are due to your estate under the provisions of beneficiary designations.
Wills come in a variety of complexity levels and can be used to achieve a variety of family and tax goals. A will is frequently referred to as a simple will if it allows for the forthright distribution of assets. If your will establishes one or more trusts after your death, it’s known as a testamentary trust will. A pour over will, on the other hand, leaves probate assets to a preexisting inter vivos trust (formed during your lifetime). Revocable living trusts are the name given to such pre-existing inter vivos trusts. The purpose of such trusts, or those created by a will, is to ensure that property management, divorce, and creditor protection are all maintained for the beneficiaries.
What Does a Will Not Do?
A will does not control the transfer of non-probate property, which passes to someone other than your estate on your death by operation of law (title) or contract (such as a beneficiary designate). Real estate and other assets with survivorship rights, for example, immediately pass to the remaining owner. Similarly, regardless of your will, an IRA or insurance policy payable to a specific beneficiary passes to that named beneficiary.
Trusts are legal arrangements that allow you and your successors to achieve a variety of key personal goals that would otherwise be impossible to accomplish. The term “trust” refers to the holding of property by a trustee, who can be one or more people, a corporation, or a bank, in accordance with the terms of a contract, known as a written trust instrument, for the benefit of one or more people known as beneficiaries. The beneficiaries are the equitable owners of the trust property, whereas the trustee is the legal owner of the trust property. A trustee and a beneficiary of the same trust can be the same individual.
When you create a trust, you are referred to as the grantor or settlor of the trust. A testamentary trust is one created by a will, and the trust provisions for such a trust are included in your will. A living trust, also known as an inter vivos trust, is established during your lifetime, and the trust provisions are specified in the trust agreement or declaration. Rather than your will or state law default rules, the conditions of a living trust or inter vivos trust will normally govern what happens to the property in the trust when you die.
A trust established during one’s lifetime might be revocable, meaning the settlor can change or revoke it, or irrevocable, meaning the settlor cannot amend or revoke it. Either form of trust can be created to achieve the goals of property management, support to the settlor in the case of physical or mental incapacity, and property disposition after the settlor’s death with as little intervention from the probate (surrogate or orphan’s) court as possible.