What If I Die Without a Will?

If you die without a will, the state has a default plan prepared for you. Missouri’s “default plan” is contained in § 474.010 of the Revised Statutes of Missouri, and while it provides a plan, it might not be the plan you want.

If you don’t have children, your surviving spouse gets your property. For many married people, this is probably what they would have wanted anyway. No surviving spouse? Your parents and siblings get your property, then. No parents, siblings, and their descendants? Your grandparents, aunts, and uncles (and their descendants) go next. This goes on until the 9th degree of consangunity (more on that in a moment).

If you have children, they (or their descendants) will get your property. If you also have a surviving spouse, your children will share the property with your surviving spouse; how much depends upon whether your children are also the children of your surviving spouse.

If there is no one left in your family–within the 9th degree of consanguinity, anyway–the property escheats to the state.

That’s the plan. For a one-size-fits-all kind of deal, it’s not too bad. But what are the drawbacks?

  • You don’t get to choose who takes your property. The statute just operates until it finds heirs, and that’s who gets it.
  • You don’t get to determine how much the heirs receive. Sometimes people want to leave unequal amounts to their children or others. That has its own set of potential pitfalls, but it’s not really an option in intestacy, because the shares are divided as the statute directs–usually, evenly.
  • You don’t get to make special bequests. Did you want to pass a particular piece of property–an heirloom, a piece of real estate–to someone? Making a bequest of a particular piece of property is known as a “special bequest,” and that doesn’t happen in intestacy, though perhaps the heirs can work something out.
  • Your property might pass to “laughing heirs.” A “laughing heir” is someone that inherits property from you, but is so distantly related that they don’t know you well enough to mourn your death (the name is a bit ghoulish for my taste, but I didn’t make it up). If you begin outliving your family as you get older, this becomes more and more likely. In Missouri, property can pass to the ninth degree of consanguinity; as you can see here, the ninth degree is quite a ways out: I don’t know my second cousins thrice removed or my third cousins once removed, but they could still inherit property from me under the intestacy rules.
  • You can’t give part of your estate to charity.
  • Your heirs simply receive the money. That might not sound too bad, but if you have an heir that has creditors, difficulties handling money, or needs public assistance, they could wind up losing that money without some special protections in place. The intestacy rules make no provision for those special protections, unfortunately.
  • Your estate doesn’t avoid probate. Some people believe that not having a will keeps their estate out of probate court, but that’s not the case.
  • If you have minor children, you won’t be able to nominate a replacement guardian to the court.

Maybe none of that is an issue for you, or maybe you’re happy with the results under the intestacy statute. If so, great! However, if you want to put together a plan that addresses these issues and helps your family once you’re gone, you should consider building an estate plan.

Photo credit: Flickr user pfly, http://www.flickr.com/photos/pfly/188629337/