Scriber Law Group, LLC.

What If You Die Without a Will?

Okay, so everyone you talk to and every article you read is encouraging you to write a will. They're telling you you'll regret it if you don't do so long before you die. They tell you that if you don't have a will, your family and friends will lose everything. First, the state will come along and take almost everything in taxes, and your potential errors will be mad at you because you made such a mess of your legacy. So, you're wondering, are they right?


Yes and no.


It's pretty simple. A person with a will has a large measure of control over their assets when they either die or become incapacitated. However, the person who dies intestate, meaning someone who dies without a will or trust in place, a state court will create a default will, which will determine who gets all of your probate assets.


What happens if someone dies without a will or trust?


First, the judge will appoint a family member to inventory all of the assets in the estate, and make a list of all property with a title. Depending on the title method the inventory designee will place assets with automatic inheritance rights onto one list, which will automatically transfer to the named beneficiaries.


The court will also put together an inventory of untitled property, including your electronics, jewelry, furniture, cash, art, and everything the person doing the inventory can find. Keep in mind, if it's open and available to the family member, it will be listed. If it's hidden somewhere, or it's located in an online account that only you know about, consider it lost forever.


Once the inventory is complete, the court-appointed estate representative – usually a surviving spouse or the oldest surviving adult child – will essentially serve the same role as an executor, and will determine how the assets in your inventory will be distributed. The state's laws of intestacy will be used to create a formula that will be used to distribute the remaining property. That means, a bureaucrat with the state in which you die will get to decide where your assets go, and not you.


In Georgia, for example, the law directs probate assets to be divided among your surviving spouse and your natural children. No provision is made for stepchildren, spouses from previous marriages, or anyone else who isn't directly related to you by blood. If there is no surviving spouse or children, and if you are not considered legally married to your partner at the time of your passing, then your assets will go to the next of kin, who could be someone you have never even met before. It could also be your parents, even if they haven't spoken to you in years. If there are no surviving relatives, everything will probably go to the state.


Dying without a will means you have no say in what happens to any of your assets. Other people control your fate and legacy. Is that what you want? 

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