Death is an unpleasant topic of conversation, yet it is an inevitable and absolute truth of the universe. Though there is little we can do about it, we can still control what happens after it. This brings your will, which determines the fate of your assets, into the picture. 

Despite progress on multiple fronts and upgrades in lifestyle, only a mere 46% of Americans have a will. In order to secure your estate as well as the future of the loved ones you leave behind, there’s no alternative to a will. 

Here we will talk about the consequences of not writing a will for the assets and the loved ones you leave behind. 

What is a Will?

A legal document that testifies your will regarding your possessions and property posthumously is the last will. Tasks like settling debts, nominating guardians for minors, and choosing heirs can be settled with a will. 

You will also have to appoint an executor to present your will to the probate court for authentication and execution. However, if you pass away without a will, those decisions will be taken by the court.

A will is effectively telling the court what you wish to do with your assets and to who you wish to leave them in care. This is why it is essential to avoid dying without a will in Texas or anywhere in the United States. 

Dying Without A Will – What Is Intestate? 

When an individual dies without a will, their estate is dealt with in what is called intestacy. The intestacy law differs between states. In most cases, they transfer your assets to your spouse or any children you may have if you are a single parent. 

But it is most likely that your state probate court will freeze your assets, thoroughly analyze them and then decide their fate. This process is time-consuming and taxing on the surviving family members but can be easily avoided.

What Is Probate?

Regardless of a will, the state will transfer your estate to the probate court to determine the distribution of your assets. For those with a will, the executor of your choice will be appointed and will dispense with your assets as per your wish. 

On the other hand, the state will appoint an administrator, usually your spouse or child, to represent you in court in the absence of a will. 

Finally, a public trustee appointed by the court will be in charge of distributing your assets if there are no living relatives or willing representatives.

This is an expensive process and can end up costing you thousands of dollars in legal fees. Though there’s no way to avoid probate court, a will can drastically reduce the time constraints and financial burden on the bereaved family. 

Dying Without a Will in the USA

Your relationship status and living descendants will play a role in determining the successor of your estate. Here’s an overview of how the process works.

Single

Parents will be the primary candidates to inherit your assets including cars and homes in the absence of a spouse or children. This will be received after accounting for any deductions made for debts (student loans etc).

If either or both parents have passed away, the succession goes to the remaining parent and your siblings including half-siblings equally. Your nephews and nieces will receive the assets if your parents and siblings have passed away.

In rare cases, if you are single without parents or siblings, your assets will be transferred to extended family, which includes cousins on both of your parents’ sides.

Married

In most states, the surviving spouse receives the assets or a portion of them if you pass away without a will. However, laws vary depending on the state and the presence of children from previous marriages can affect the inheritance.

For instance, property that is owned by both spouses jointly goes to the spouse who is alive. But property owned by the dead spouse independently will be equally distributed among the spouse, children, parents, and siblings.

Just to give you a couple of examples of differences between states – California transfers the entire property to the spouse whereas Tennessee only gives out one-third of it in the absence of a will. 

Some states do not recognize stepchildren eligible as heirs so inquire with your estate planner on the matter. This is why a will is best to avoid conflicts that can arise from this succession battle.

Domestic Partnership

A domestic partner isn’t recognized in many states as the rightful inheritor of your property unless it is commonly owned. This includes states such as Texas (with the exception of a few counties). This is why it is best to plan ahead and avoid dying without a will in Texas and other states that don’t acknowledge domestic partnerships.

Cohabiting or Common Law Marriage

The problem with intestacy laws is that they dictate succession rights only based on blood, marriage, and adoption. Many states don’t recognize common-law marriage and unmarried couples can’t access the same benefits as their married counterparts in such states without a will explicitly expressing the deceased individual’s will. 

In such cases, the surviving partner only gets their share of any commonly owned properties or property under tenancy entirely, or joint tenants with the right of survivorship. 

Some states that acknowledge cohabitation include Kansas, Montana, Colorado, Iowa, New Hampshire, Texas, and Utah. The surviving partner must be able to prove their common-law relationship to the state in order to obtain the inheritance.

Transfer of Property With a Deed

In some cases, the property deed may be used to transfer property as opposed to probate court. 

Although this doesn’t change the process significantly in most cases, there are changes in the transfer of a family estate or other real estate:

1. Joint tenancy: here both spouses have an equal share in the property. If one spouse passes away, then the surviving spouse will inherit the assets.
2. Tenants in common: both spouses have a share in the property which may be unequal. After the death of one spouse, the deceased share is distributed among the descendants and the remaining spouse retains their share of the assets.

Your death will be a source of immense grief to your loved ones. The emotional instability will only add fire to the fuel. Succession battles can get incredibly ugly very quickly. 

A will ensures that family feuds can be avoided and your belongings pass on to inheritors of your choice who can be trusted. 

Dying Without a Will in the USA

Taxes can be tricky to navigate around. This can be even more so if you are no longer around to handle them. Even though tax laws vary between states, there are some basics that remain the same.

For instance, an estate worth more than $11.58 million is liable to 40% federal taxes. Anything below this amount, they are exempt from federal tax. 

But you can avoid a part of the tax burden with a will. For instance, your spouse will greatly benefit from a will. A will can account for a marital deduction so your spouse can inherit the estate entirely tax-free.

Responsibility for Your Kids 

Children especially if they are minors bear most of the brunt of your passing away without a will. This is why Estate Planning is crucial for parents. 

The judge, despite their best efforts, is unaware of internal family dynamics so is not the ideal person to determine the guardianship of the children. 

Even if a family member volunteers to be the guardian, without a will, there’s no guarantee that your children will end up in the household of your choosing. 

Other Considerations When Creating Your Will

One way to bypass the hassle of handling property and the probate process as much as possible after your death is by establishing a living trust. Moreover, a living trust will also manage your assets during your lifetime. 

There are usually two types of trust: revocable and irrevocable. In order to avoid the probate hassle, especially for items that don’t allow beneficiary designation, you should go with a living revocable trust. For example, real estate is a popular revocable living trust choice to avoid probate.

Writing a Will?

Writing a will is easier than it seems. There are many options to choose from depending on the complexity of the estate. Any reputable online self-help service can be used to draft a simple will from the given format.  Then you can print it out and get it witnessed and signed. 

For more complex estate affairs, hire a lawyer may be a wise decision who will help you draft your last will which you can sign.

Without a Will in the USA

The future is unpredictable and even though death is a grim topic that we would rather not deal with, it is necessary to accept it as part of life.

Your will is essentially your “voice” and aids in the execution of your final wishes when you are no longer around. For instance, you would want to give your final belongings, especially valuable assets, to those you most loved and cared about. 

This is why drafting a will along with proper long-term estate planning should be on the top of your to-do list. Not only will you have the final say on your assets but also reduce the burden on your loved ones.

Don’t die without a will in the USA, or it will just cause problems. Speak to an attorney.