As an Elder Law attorney, I am continuously asked, “What happens if I die without a Will?” The most accurate answer is, “I don’t have a clue.” And sadly, you probably don’t either.
When you pass away you want your estate to pass down to the beneficiaries you choose, but you must understand the rules or it can go terribly wrong. These rules are already being applied to you and your assets whether you realize it or not. Let’s apply these rules to a typical modern day family: The Brady Bunch. Mom and Dad both have three children from their prior marriages, no children together.
The first rule is that a Last Will and Testament only controls those assets that are in your name alone. If Dad signed a will leaving everything to his children from his first marriage, but he named his current wife as joint owner or beneficiary of the house and financial accounts, the Will has no bearing. This is because joint ownership and beneficiary designations supersede the Will.
Here is an example of it going horribly wrong: Mom and Dad are recently divorced and they have the cutest 2-year-old son. Dad signs a new Will leaving everything to his son but names his brother as beneficiary of his $500,000 life insurance policy so that his brother can watch over the money. Dad dies. His brother says “thank you very much” and keeps every dime of the money.
The next rule is that if you never signed a Last Will and Testament, the law will give one for you. It’s called the Law of Intestate Succession and it will control the distribution of your estate upon your death. It is state specific, but it generally follows the family tree. Your spouse gets the majority and then down to your natural or adopted children. Now, let’s think back to The Brady Bunch. Mom and Dad want everything to go to each other and then down to the six children. Dad dies first and then Mom dies, the Law of Intestate Succession states that everything follows Mom’s family tree, her three children. Dad’s children get nothing. Now it is up to Mom’s children to decide if they are willing to share in their inheritance.
Let’s say you and your spouse pass away without a Will. The law says your estate goes down to your children. This could be fine. However, it could be the worst thing in the world because the only restriction is that they cannot get the money unless they are over 18 years old. Normally, giving money to a young adult is the worst thing in the world. They don’t have the maturity to spend it wisely. If you have a Will, you can put restrictions on how they get their inheritance: use it for their health, welfare, and education instead of just giving them a check.
If you understand the rules, you can ensure that you create a plan that passes your estate down to the beneficiaries that you want and not unintended beneficiaries. You also have the ability to protect those beneficiaries from themselves by inserting restrictions in your Will as to how they can access their money. You can also pick who you want to administer your estate instead of letting a Judge decide for you.
That being said, a Last Will and Testament is only one tool in the estate planning toolbox. If you rely on just a Will, your estate will have to be probated which can take months or even years depending on the size and complexity of your estate. In addition, a Will has nothing to do with appointing someone to make your medical and financial decisions if you are unable to do so.
That is why many people are deciding to have a complete Estate Plan prepared, especially by a Medicaid attorney. A good Estate Plan has the documents needed for any situation that might arise: A Medical Power of Attorney, a Financial Power of Attorney, a Revocable Trust agreement that allows you to pass your estate down to your beneficiaries without the need of Probate Court, and finally, a Last Will and Testament. With a complete estate plan, you can protect you and your estate while you are alive and pass down your estate to your loved ones now and after you are gone.
Pat Simasko is principal of Simasko Law in Mount Clemens, MI.