**This article is not a substitute for the advice of an attorney.**
Question: I don’t need a will. If I die without a will, don’t all of my assets just go to my spouse?
Answer: No! Let me repeat myself because this is important. No! This is a common misconception that can lead to serious family problems down the road.
If a person dies without a will, every state has statutes (called “intestate succession statutes”) that control the distribution of that person’s estate. (Importantly, not all assets pass through an estate. Life insurance policies for which a beneficiary is named or accounts held in joint tenancy are examples of assets that would pass via those contracts and would not be subject to intestate succession statutes.) Essentially, if a person dies without directing how his or her estate should be distributed, the state’s legislature will decide for the deceased person by statute. These statutes can be complex and may lead to results the decedent never would have foreseen or desired. This is not surprising given the fact that family relationships and dynamics differ greatly for each person, yet when a person dies without a will, the same statutory standards apply to everyone.
Here are links to versions of the intestate succession statutes in Texas, New Mexico, and Oklahoma. If anyone needs the link to an intestate succession statute in another state, please feel free to contact me, and I will be happy to provide that information for you.
Furthermore, going estates distributed by intestate statutes will likely cause the probate process to be more expensive and time consuming. An administrator appointed by the court will be forced to spend time and money searching for all possible heirs who will be entitled to inherit under the statute.
A Few Examples: In order to help explain how intestate succession statutes work (and to encourage everyone reading this to draft a will rather than rely upon these statues), here are a few sample scenarios.
Let’s suppose that a husband dies without a will in Texas. All of his property does not go to his wife. Instead, the following will occur based upon the Texas instate succession statute.
If the husband was married with no children, his wife would get all of the community property, all of the separate property, but only 1/2 of the separate real property. The other 1/2 of the separate real property would be given to the husband’s parents in equal shares. Here is an example of how this could play out: Suppose that the husband inherited a ranch from his grandfather. That ranch would be separate real property. Under the intestate succession rules in Texas, his wife and in-laws would each own 1/2 of the ranch. This could pose a problem if the wife did not get along well with her in-laws or if the decedent’s parents were estranged from each other.
If the husband was married with children, his wife would get 1/3 of the separate personal property and the children would get 2/3. For the separate real property, his wife would get 1/3 as a life estate and the ownership and remaining 2/3 would go to his children. For his share of the community property, if the husband’s children are also the wife’s children, she gets all of the community property. If, however, the children were step-children and not the wife’s children, the husband’s 1/2 share of the community property would go to the children. Again, this could pose a serious problem in certain families. Under this statute, 1/2 of a couple’s personal assets would be owned by the surviving spouse’s step-children. In the event there was not a good relationship, this, too, could cause serious problems for the surviving family.
Take Away Message: If you die without a will, your property does not all automatically go to your surviving spouse. It is extremely important to have a will that directs the disposition of your property upon your death. Without a will, intestate statutes will be applied to your estate and may cause not only undesired but disastrous results for the family that you leave behind.