By Donald D. Vanarelli, Esq.
Deciding how your affairs will be handled upon your death is never an easy task. For this and other reasons, many people simply choose not to execute a Last Will and Testament. But keep in mind that, by not making a will, you are making a decision to allow the intestacy laws of your state to dictate the manner in which your estate will pass, sometimes with unexpected (and undesired) results.
What is “Intestacy”?
The term “intestacy” refers to the manner in which a person’s estate passes upon death, in the event that the person did not have a valid Last Will and Testament in place. When this occurs, the deceased person (the “decedent”) is said to have “died intestate.” If an individual dies with a valid Last Will and Testament, but that will fails to properly dispose of all of the decedent’s property, the property not disposed of by the will also passes by intestacy.
Rules governing intestacy (“intestate succession”), which vary by state, will dictate to whom, and in what percentages, an intestate estate will pass.
Common Reasons for Not Making A Will
Executing a Last Will and Testament is rarely an activity that people anticipate with eagerness. The process requires the person making the will (the “testator”) to consider and make sometimes difficult decisions regarding such things as to whom their money will pass, their wishes regarding the disposition of their remains, and who will take care of their minor children.
In fact, it is estimated that most people die without having executed a valid Last Will and Testament.1Among the factors cited for this phenomenon are: the legal fees associated; the reluctance to confront one’s own mortality; a general distaste of lawyers; the belief that a will is only necessary for those with large estates; and laziness.2 People may also forego the execution of a will based on a misunderstanding of the intestacy rules, and who will inherit under those rules.3
The Intestacy Approach: Understanding Your Decision To Not Execute A Last Will and Testament
The Uniform Probate Code’s intestacy provisions contain the following expressed purpose: “to reflect the normal desire of the owner of wealth as to the disposition of his property at death.”4 The intestacy laws are considered default rules for those who die without a will. The laws are based on the notion that the decedent’s intent is of prime importance, and that most decedents would wish their estates to pass to “family.”5
Intestacy laws thus provide for inheritance by virtue of the status of a person as a family member, also called the “natural object of the decedent’s bounty.”6 In contrast to this intestacy model, however, society has witnessed a decline in the number of traditional nuclear families: we have seen a rise in the number of adopted children, stepchildren, children born out of wedlock, and non-traditional relationships, such as committed but unmarried partners.
Because intestacy laws are based upon the traditional family paradigm, the objects of these non-traditional relationships may not be recognized, even if the decedent had always considered these individuals to be “family.” In fact, legal scholars opine that, for the many Americans who die without a will, there is a “strong likelihood” that the people considered by the decedent to be “family” in fact will not inherit any of the decedent’s estate.7
Intestacy laws differ by state. In general, when a decedent dies and leaves a surviving spouse and children, the spouse takes one share, and the children take another.8 When a childless decedent dies leaving a surviving spouse and surviving parents, the applicable intestacy laws may provide that the estate be distributed to both the spouse and the parents, or the laws may provide that it be distributed to the spouse only.9 If an unmarried and childless decedent dies leaving surviving parents and siblings, the intestacy laws may provide that the siblings be excluded from distribution, or that both parents and siblings share in the distribution.10
The intestacy rules are applied rigidly, regardless of a surviving relative’s actual relationship with the decedent, sometimes with undesired results:
When no “close” family members survive, the law ignores those in intimate, dependent relationships with the decedent to confer windfalls on distant relatives who may not even have known the decedent…. Behavior and need are irrelevant. In most states, the decedent’s closest relative inherits even if she abandoned, maltreated, or physically abused the decedent.11
By not executing a will, a decedent is, in effect, choosing to allow the intestacy laws of his or her state to govern the distribution of his or her wealth upon death. But is this a well-informed decision?
According to one study, while 70% of those polled responded that they knew who would inherit their property in the event that they died without a will, further questioning revealed that less than 45% of those participants were correct, or nearly correct, in their understanding of the applicable intestacy laws.12 In another similar study, 70% of participants claimed to know how their estates would be distributed under the intestacy laws, but 64% of those participants were wrong.13 A third study revealed that only 14% of respondents understood that intestate inheritance actually exists, believing instead that dying without a will resulted in the government receiving the decedent’s property.14
In addition to the issue of who will inherit a decedent’s estate, the method of distribution also should be considered before a person chooses not to execute a will. While intestate distributions are outright distributions, a Last Will and Testament allows an individual to structure distributions through the use of trusts and other techniques. Structuring testamentary distributions may provide added protection to disabled beneficiaries, or to children of the decedent’s previous marriage. By not making a will, an individual abandons the ability to structure dispositions to beneficiaries. By not making a will, an individual also foregoes the ability to conduct estate tax planning.
In addition to these financial issues, a Last Will and Testament may address other very personal issues, such as who will be entrusted to administer the decedent’s estate; what will happen to the decedent’s personal effects of sentimental value; how the decedent’s remains will be disposed of; and who will care for the decedent’s minor children. By not executing a will, these critical issues may be left to chance.
Knowledge of your state’s intestacy rules is essential when making the critical decision of whether to execute of a Last Will and Testament. Keep in mind that, by not acting, you are making a choice to allow the disposition of your estate to be dictated by those intestacy rules. As legal literature has noted, “although we cannot opt out of death, we can opt out of intestacy.”15
1 McCunney, M. and DiRusso, A., Marketing Wills, 16 Elder Law Journal 33, 34 (2008).
2 Id.; Foster, F., The Family Paradigm of Inheritance Law, 80 North Carolina Law Review 199, 263 (December 2001).
4 Fried, M., The Uniform Probate Code: Intestate Succession and Related Matters, 55 Albany Law Review 927, 929 (1992).
5 Gary, S., We Are Family: The Definition of Parent and Child for Succession Purposes, 34 American College of Trust and Estate Counsel Journal 171 (Winter 2008).
6 Foster, F., The Family Paradigm of Inheritance Law, 80 North Carolina Law Review 199, 206-7 (December 2001).
7 Higdon, M., When Informal Adoption Meets Intestate Succession: The Cultural Myopia Of the Equitable Adult Doctrine, 43 Wake Forest Law Review 223 (Spring 2008).
8 Foster, F., The Family Paradigm of Inheritance Law, 80 North Carolina Law Review 199, 207 (December 2001).
9 Scalise. R., Jr., Honor Thy Father and Mother?: How Intestacy Law Goes Too Far In Protecting Parents, 37 Seton Hall Law Review 171, 177 (2006).
11 Foster, F., The Family Paradigm of Inheritance Law, 80 North Carolina Law Review 199, 207 (December 2001).
12 Scalise. R., Jr., Honor Thy Father and Mother?: How Intestacy Law Goes Too Far In Protecting Parents, 37 Seton Hall Law Review 171, 203 (2006).
13 Scalise. R., Jr., Honor Thy Father and Mother?: How Intestacy Law Goes Too Far In Protecting Parents, 37 Seton Hall Law Review 171, 203 (2006).
15 McCunney, M. and DiRusso, A., Marketing Wills, 16 Elder Law Journal 33, 34 (2008).
Donald D. Vanarelli, Esq., with offices in Westfield NJ, is a Certified Elder Law Attorney (by NAELA, accredited by the ABA), an Accredited Professional Mediator and an Accredited VA Attorney. Mr. Vanarelli was selected as a “Super Lawyer” in years 2007–2011 and is a founding member of the New Jersey Elder Mediation Center. Specialized practice areas include: probate law, estate planning,estate administration, estate litigation, guardianships, and special needs trusts.