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What Happens Without a Last Will and Testament?

Intestacy - Dying Without a Will

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If you fail to make a Last Will and Testament before you die, then your estate will be divided up among your intestate heirs based on the intestacy laws of the state where you live at the time of your death and the intestacy laws of any other state where you own real estate and/or tangible personal property. Aside from this, if you have minor children and you and your spouse die before the children become adults, then a probate judge will decide who will get custody of your children and who will manage their inheritance until they reach the age of 18.

What's wrong with this? In many cases your state's intestacy laws will give different results from what you would have wanted had you taken the time to make a Last Will and Testament. Aside from this, if you do own real estate and/or tangible personal property outside of your home state, then you could end up having two different sets of beneficiaries of your estate.

What Happens When You Don't Own Property Outside of Your Home State?

If you only own real estate and tangible personal property in your home state or you don't own any real estate at all, then who will inherit your entire estate will be determined by the intestacy laws of your state of residence.

If this situation applies to you, then you need to understand the intestacy laws of your state because these laws vary dramatically from state to state. Read below to see an illustration of the differences between the intestacy laws of Florida and Virginia.

What Happens When You Do Own Property in More than One State?

If you live in one state and own real estate and/or tangible personal property in a different state, then who will inherit your property will be determined by the intestacy laws of two different states, and the end result may well be two different sets of beneficiaries. And what about property owned in three different states? Three different intestacy laws will apply and you'll possibly end up with three different sets of beneficiaries.

Who Will Take Care of Your Minor Children and Their Inheritance?

Aside from what will happen to your property, what will happen to your minor children and their inheritance? If your spouse (or ex-spouse) is living, then he or she, as the natural parent of the children, will be the "natural" choice to take care of the children and manage their inheritance. But what if the other parent of your children is also deceased? Then a judge, who has never met you, your children, the other parent of your children, or either of your families, will decide who will take care of the children and their inheritance.

Some Examples of Intestacy Laws

In Florida, if you're survived by a spouse and children who are all children from the marriage, then your spouse will inherit 100% of your estate and your children will receive nothing. The result will be exactly the same in Virginia under these same facts.

However, use the same facts above except that one or more of your children are from a different spouse. In Florida your current spouse will inherit 1/2 of your estate and your children will share equally in the remaining 1/2 of your estate, while in Virginia your current spouse will only inherit 1/3 of your estate and your children will share equally in the remaining 2/3 of your estate.

What will happen if your children are minors and your spouse (or ex-spouse) is also deceased? Then a probate judge will have to decide what is in the "best interest" of your children, which will mean that the judge will have to choose between someone from your side of the family and someone from the other parent's side of the family as the "best" person to take care of your children and their inheritance. Scary thought, isn't it?

What Should You Do?

The examples above illustrate what a big difference state laws can make. The only way to insure that after your death your property will go to the beneficiaries of your choice, when you want them to receive your property, and in the way that you want them to receive it, and who will take care of your minor children and their inheritance, is to make an estate plan.

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