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Why You Want to Avoid Intestacy

Why You Want to Avoid Intestacy

About two out of three Americans will die without a will. This is known as dying intestate.

While the reasons for not having a will vary, the end result is the same for everyone: they do not get to choose who receives their property when they die. Instead, their money and property are distributed according to the laws of their state in a process called intestate succession.

This is not necessarily a bad thing. In most states, a person’s spouse, children, parents, and siblings are given priority in the line of succession. But when a state’s default intestacy laws do not align with the actual preferences of the decedent about who should get what, this can lead to a number of issues, especially when a family is blended and does not have a typical nuclear structure. In fact, because more than half of marriages now end in divorce, most families have shifted from having a biologically bonded mom, dad, and kids to a blended family structure.

For example, default intestacy laws can leave out not only stepchildren, foster children, and children placed for adoption, but also close family friends, charities, and others not related by blood. Or split your estate with family members you would not otherwise choose. In Oklahoma, If the decedent leave no issue, the estate goes one-half (1/2) to the surviving husband or wife, and the remaining one-half (1/2) to the decedent’s father or mother, or, if he leave both father and mother, to them in equal shares.

Intestacy can also give rise to the following additional issues:

  • Loved ones are unable to make specific funeral arrangements.
  • The probate court chooses a personal representative to manage the estate, who may not be somebody the decedent would choose for this role.
  • The court decides who raises minor children.
  • Small business owners can lose control of what happens to the business when they die.
  • Property that the decedent intended to keep in the family could be sold.
  • Arguments can break out between heirs about what the decedent would have wanted.
  • There are no instructions for end-of-life care or incapacity.

To clarify, not all accounts and property pass through probate when somebody dies without a will. Some accounts and property bypass probate, including those jointly owned with survivorship rights, accounts with beneficiary designations, and transfer-on-death and payable-on-death accounts.

There is much about death we cannot control. We do not know when, where, or how we will meet our end. But we can control our legacy and make our final wishes known through an estate plan.

You may think that you are too young or lack the assets to create an estate plan. However, that is simply not the case. A better question might be: can you afford not to?

Do not leave your legacy up to the state. Create an estate plan while you still can and make your wishes known.