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What Happens If You Die Without a Will?

Published Monday, November 4, 2013

Most people know that they should have a will, but put off creating one. It’s natural to put off things you don’t want to deal with. A recent study shows that what we think about having a will does not connect with actually having one. While 60 percent of those surveyed said they believe all adults should have a will, only 44 percent said they have one. What people don’t realize is how difficult we make for our family if we pass away without a will.

 

Alyson Graham, a tax and estate planning attorney with the Gainesville law firm Stewart Melvin & Frost, talks about the consequences if we die without a will.

 

Question: Can you give us a quick explanation of what a will is?

 

Alyson: Sure. Simply put it’s a document that states your final wishes. If you don’t have a will you don’t have the final say and state law will determine what your wishes are. 

 

Question: If you die without a will, what happens?

 

Alyson: If you die without a will, your property will be distributed according to Georgia's intestate law. "Intestate" is when a person dies without a will. Under the law, your property is distributed to your heirs.  If you are married and have children at your death, your heirs are your surviving spouse and your children.  Usually, spouses and children inherit equally, provided that your spouse receives no less than a third of the property.

 

If you pass away before your parents and don’t have a spouse or children then your parents would inherit. And if your parents are not alive, your brothers or sisters would inherit, and if you have no living siblings then your nieces and nephews would inherit, then any living grandparents, then aunts and uncles, cousins and so on among more and more remote relatives.  This happens whether you have a relationship with any of these relatives or not. The court will apply the law.

 

There are strained relationships in families – that’s a nice way of saying families don’t always get along. So you need a will to make sure your property is distributed the way you want, and to help avoid disputes among your surviving family members.

 

Question: People tend to think of their property when it comes to wills, but what are other important issues to address in a will?

 

Alyson: The most significant consideration is minor children. If you and your spouse were to pass away, a will is your legal way to name the person or persons who will take care of your minor children. 

 

Also, a will can establish trust funds to help support your children in the way you want. Without a will to provide this type of structure and guidance, your children could gain full control over a substantial inheritance between ages 18 and 21, when they may not yet have the maturity to make the best financial decisions for themselves.

 

Question: Why do you think people put off writing a will?

 

Alyson: That’s an interesting question. People know they need a will but they do put it off. There is the study you mentioned earlier that 60 percent of people say they know they need a will but only 44 percent have them. 

 

In most cases its procrastination. It’s human nature to put off perceived difficult decisions. In some cases, people don’t like to talk about personal details with someone they don’t know. They can be unsure of what to do or they may believe it is too difficult or expensive to create a will. There can be family issues involved that people want to avoid dealing with. Among younger people, they think they are too young to have a will.

 

We tell everyone who has any property or any children that is it is important to have a will. Most wills are relatively simple to prepare when you work with a professional who can help you identify all of the matters which need to be addressed in your particular estate plan.  Beware of a will that is made with little thought or input from an estate planning lawyer, as it may not take into account all of the details which are specific to YOUR estate, YOUR wishes and YOUR family.  I have not had a client meeting yet where the client did not say something like “I had not thought of that” at least once in the course of discussing how their will should be drafted.  

 

Wills that are more complex further demonstrate just how important the creation of a will is, because they reflect solutions to complicated problems - complicated problems which otherwise would be left to the heirs and the one-size-fits-all state laws to sort out if there was no will.  

 

You can and should make changes to your will as circumstances change. Wills are personal to you, and just as your life and financial circumstances change, so should your will to stay up to date with your wishes.  We can craft a will for you and answer any questions you have. 

 

 

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