Have you spoken with an estate planning attorney before? Have you ever gone online and created Powers of Attorney, Advance Healthcare Directives, or maybe even a Revocable Living Trust? What happens if you don’t have any estate planning documents?
If you have not taken the time to create an estate plan, that doesn’t mean that you don’t have one. It means that legislators, attorneys, and politicians you have never met decided what your estate plan was going to be. The default estate plan for Californians is found in the California Probate Code.
When someone dies without leaving any estate planning documents, it is called dying “intestate.” The rules for intestate distribution are complicated and can vary due to small differences in the family structure. The intestate laws assume, for the most part, a nuclear family with a husband, wife and natural-born children. Today, however, families are constructed in many different ways. One analysis has 50 different types of family structures in American households. Approximately 25% of Americans have been remarried, and–through adoption and stepfamilies–millions of children are living in blended families. The laws just haven’t kept up, and absurd results can occur if you rely on intestacy as your estate plan. Stepchildren that you helped raise (but didn’t legally adopt) may end up with no inheritance, while a soon-to-be-ex-spouse may inherit your entire estate.
Following are some things that you probably want to plan for yourself and your family rather than leaving it to the legislators.
If both parents of minor-aged children die intestate, then the children are left without a legal guardian. Kids don’t automatically go to a godparent, even if that’s what everyone knew the parents had intended. Instead, a court will appoint someone to be the children’s guardian. In such situations, the judge seeks to act in the children’s best interests and gathers information on the parents, the children, and the family circumstances. But the decision is up to the court, and the judge may not make the decision that you, as a parent, would have made.
How should your assets be distributed among your family if you passed away? Should everything go to your spouse? Should your children receive a share? What happens if they are too young to legally receive assets? What should the assets be used for? It is important to understand your personal family dynamic and how the Probate Code would distribute your assets upon your death.
Remember, that there are also assets that are not controlled by the Probate Code, such as retirement accounts, insurance policies, pay-on-death (POD) accounts, joint tenancy assets,
etc. It is important to coordinate your entire estate, so that the probate and non-probate assets end up where they should.
Many families today have children from multiple relationships with legal guardianship rights varying drastically. It is important to think about your natural children, step-children, adopted children, etc. and understand how the assets would be distributed accordingly.
When it comes to asset division, in most cases, state intestacy law presumes that a family consists of a husband, wife, and their natural-born children. But, that’s not necessarily the way many families are structured, and things can become legally complicated quickly.
Say, for instance, a father has a will that allocates assets to his spouse and two children, then they adopt a third child. Then, the father dies in a car accident before he’s able to revise his will. In some states, because the adopted child is not mentioned in the will, she may not be entitled to any inheritance.
If that isn’t worrisome enough, consider that, in some states, the law provides that an adopted child still has rights to the biological parents’ assets–and the biological parents are entitled to inherit a child’s wealth. (Imagine if the adopted-as-an-infant Steve Jobs had died intestate, and his biological parents demanded a share of his estate!)
Of course, with a will or trust, you can control your estate and essentially eliminate the risk of these crazy results.
What if You and Your Spouse Are Separated?
State law decides what happens to your estate if you are separated from your spouse when you die. Much of the time, the court ignores your separation and just considers you still legally married.
Unless you have a prenuptial or postnuptial agreement, it is extremely difficult to disinherit your spouse. Again, even if a spouse is omitted from a will, state laws might choose to give a surviving husband or wife a share of the assets.
If you are separated from your spouse, and your divorce is pending, you should definitely talk with your divorce lawyer and an estate planning attorney about your options.
Intestacy provides no asset protection or preservation benefits. Without any protections in place, an estate’s assets are still vulnerable to creditors, lawsuits, and others who may claim entitlement to the property. These claims would take precedence over the statutory requirements for inheritance. In other words, the family may not receive the lion’s share of the estate. They’d get the leftovers.
The best way to safeguard and pass along what you’ve worked so hard to build is to talk to a qualified estate planning attorney. Protect yourself, your family and your assets by contacting us today.