Few of us enjoy thinking about death, but there's an Atticus quote that sums death up with a wink: "I hope to arrive to my death, late, in love, and a little drunk."
Perhaps the discomfort caused by considering mortality is one reason only 33% of Americans currently have a will. Uncomfortable or not, we're all going to face death one day, but in the meantime, here are two of the many questions we'll ask ourselves:
- How do I want to spend my life?
- What do I hope to leave behind?
Leaving tangible assets to those we leave behind is all about creating an estate plan. But, what if you die without a will?
The state gets involved
If you're not a big fan of the government telling you your business, you're really not going to like this. The legal term for dying without a will is "intestate." If you die intestate, the laws of your state determine how any money or property will be distributed. Want your best friend to have the jewelry you purchased when you were on vacation together, or your nephew to take possession of the art you've collected through the years? It's really up to the state.
Typically, things shake out like this:
If you're single
- If you're single and don't have any children, the state will award your estate to your parents in equal shares. If your parents are dead, your estate will be equally divided among your siblings. If there are no living siblings, the state will look for other relatives.
- If you're single with no children and one of your parents has passed away, your estate will normally be divided between the living parent and your siblings.
- If the state can locate no close relatives, cousins on your mother's side of the family will inherit half of your assets, and cousins on your father's side will inherit the other half.
If you're married
- If you're married but don't have children, the entirety of your estate goes to your spouse.
- If you are married and do have kids, the estate is divided between your spouse and children. If one of those children died before you, their share will go to any children they may have had.
There are a couple of things to know about the state getting involved, according to FindLaw.
- Real estate owned outside your home state falls under the laws of that state, which may be different than the laws governing your home state.
- Without a will, romantic partners, stepchildren, and close friends are not eligible for a portion of your estate.
Common law marriage
Let's say you've lived with someone for over a decade and consider them your common law spouse. They may, or may not be in the eyes of the law. While there are a handful of states that recognize common law marriage in terms of probate (the legal process of overseeing how your assets are distributed following your death), the majority of states do not.
States where common law marriage is recognized
- District of Columbia
- New Hampshire
To complicate matters a bit more, the requirements to establish that you're in a common law marriage vary by state.
States where new common law marriages are no longer recognized
- Alabama, since 2017
- Florida, since 1968
- Georgia, since 1997
- Indiana, since 1958
- Ohio, since 1991
- Pennsylvania, since 2005
- South Carolina, since 2019
If you live in a state where common law marriage is not recognized, your partner is not considered an heir.
Depending on the laws of your state, a domestic partner may also be ignored by the state. Here's a list of states that recognize domestic partnerships and allow a registered domestic partner to inherit in the same way a spouse would inherit:
What about kids?
If you die but there is a surviving parent, that person will get custody of the kids. However, if the other parent has also died or is somehow incapable of caring for the children, the court will ask family members if any of them are willing to become the guardian. If more than one volunteers, the court will attempt to determine who would do the best job.
If there are no takers or you have no family members in a position to volunteer, your children will become wards of the state and be placed in foster care.
What happens to the home or land you own depends on the language on the deed. For example, if you're married, either your spouse automatically inherits your share of the property or they retain their share only, with the other half divided among your heirs. It's important to know how your deed is written and to understand who stands to inherit your property.
Some things don't have to go through probate court and can be paid directly to whomever you've named as a beneficiary. For example, you name a beneficiary when you purchase a life insurance policy, or open a retirement or bank account. Those assets can be transferred directly to the beneficiary (or beneficiaries) without going through the drawn-out process of probate -- even without a will.
Any assets you've placed in a trust skip the probate process too, and beneficiaries named receive whatever is in the trust.
Creating a will
The cost of hiring an attorney to draw up a will in 2022 averages between $300 and $1,200, according to NOLO. If you draw up an online will, the cost is less. If you decide to draw up a will on your own, check the laws of your state to make sure you've done everything necessary to make the will valid.
No matter how much you spend, the peace of mind that comes with knowing you've taken care of those you love is priceless.
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