No Will Can Have Unintended Results

"No Will Can Have Unintended Results"

7/30/06

Even as the number of older people continues to grow, the subject of estate planning remains a sensitive one. Recently, a long-time friend told me how perplexed he was over his elderly parent’s refusal to have wills drawn.  My own experience suggests that 75% to 80% of adults either don’t have a will at all or have one that is out of date.  Why? The most typical reason is simply procrastination.  After all, who wants to think about dying? We all want to believe that we will live until a ripe old age. 

In the case of wills, taking no action is the same as taking action since every state effectively draws a will for you if you fail to do so.  If you die without a will, you are said to have died ‘intestate’ and your state’s intestate succession laws will determine who receives your property and assets that don’t transfer either by title or beneficiary designation.  State laws can be quite quirky and often result in unintended distributions.  In the case of my friend, his parents live in Alabama and when the first person dies, the surviving spouse will receive the first $50,000 from the estate. Then, everything else will be split equally between the surviving spouse and the children.  In most cases, the surviving spouse would need all of the assets for his or her support and may be placed in the unenviable position of having to ask his or her children for money.

Another common but disastrous situation would be a married couple with no children dying without a will.  The Alabama intestate succession laws provide that the first $100,000 goes to the surviving spouse with the remainder split between the surviving spouse and the parents of the deceased spouse.  This actually happened to a close friend of mine and it took a lot of legal maneuvering and cooperation from his parents to resolve the issue.  If the couple had had a child, the wife would have received the first $50,000 with the balance of the estate divided between the wife and their child. 

This brings me to another critical point.  You want to avoid dying intestate with minor children.  In Alabama, children under the age of 19 cannot take title to assets and therefore the courts must appoint someone as the conservator for the child.  I was brought in on a case where the courts refused to appoint the surviving mother as the conservator for her 9-year old child.  Instead, the court appointed an attorney unknown to the family.  This attorney refused to allow any of the child’s assets, $500,000 in this case, to be used for the child’s benefit, which left the mother in financial peril and under a great deal of stress.

I am not sure why my friend’s parents refuse to get wills, but I will use this as an opportunity to recommend that each of you consider the consequences of not having one or having one that is out of date.  For a state-by-state review of the intestate succession laws, go to the Resource Center at www.welchgroup.com and click on ‘Intestate Succession Laws’.