Dying Without a Will

I swear, as soon as we get into port, I'll see about getting that will made. - Anonymous passenger aboard the Titanic.

In life, making no choice can often be the same as actually making a choice. The same applies in death.

If a person dies without a will or a will turns out to be invalid, two things can happen. The first and more preferable scenario is that all of a deceased's assets are split up in an orderly fashion by those closest to the deceased. Common ways that this may happen automatically are when assets have a right of survivorship feature (e.g., checking accounts and jointly owned real estate) or when the assets name beneficiaries (e.g., retirement plans and life insurance policies). Less formally, the distribution of assets occurs when relatives decide who gets what and throw out the rest.

The second way assets get distributed when a person dies without a will is according to the default rules of the state where the deceased resided. These rules are generically referred to as intestate succession laws, statutes of descent, or rules of descent and distribution. Whatever their name, though, they can be a huge disappointment for those caught unawares.

Work Smart Deciding not to have a will is effectively the same as letting your state of residence decide for you who gets your assets after your death. Rather than leave this important issue unanswered or in dispute, each state has a default system (commonly referred to as intestate succession rules or statutes of descent) in the event one is needed. For some decedents, the net result may be the same as he or she would have wanted, anyway. Most, though, may be surprised how a state decides who gets what.

State governments are in the business of imposing order to the operation of society, and intestate succession laws are just a part of this process. Intestate succession laws usually come into play when relatives have to go through probate to claim ownership of assets (e.g., money in a bank account that is in the deceased's name only) or when relatives fight over assets that they didn't get. A state doesn't want unused assets just wasting away or fights to break out over who gets what. Instead, who gets what is spelled out and followed precisely. In addition, each state has a vested interest in the process because each state can claim any unclaimed assets.

The good thing about intestate succession laws is that they are intended to mirror the expected wishes of the deceased. For example, a surviving spouse is usually first in line to inherit, followed by close relatives like children, parents, and siblings.

The bad thing about dying intestate (other than dying, of course) is that a state's default rules may not go far enough to meet a deceased's distribution wishes. For example, although a surviving spouse is generally first in line to inherit, the spouse may end up having to share the estate with other relatives of the deceased. Also, if a person is not on the list of potential heirs, then he or she is out of luck (which may result in excluding a "life partner," lifelong friend, or favorite charity). The final indignity is that, if there are no relatives identified during probate, the state takes the assets the deceased spent a lifetime acquiring.

Each state has its own set of intestate succession laws. Although there are many similarities, there are also many potential variations. To find out what your state's intestate succession laws have in store for you and your loved ones, consult the map below.