What happens to my property if I die without a will?
By Kiley & Steve Stuchlik, Attorneys at Law
Last month, we explained that a Last Will and Testament or a Revocable Living Trust with A Pour-Over Will constitute the main estate planning documents that govern the distribution of your assets upon your death. But you might be wondering, what happens if I die without any such instrument? You might have heard the term “intestate.” Does that mean that if you die without an estate plan your assets pass to the State? No, not unless your intestate heirs cannot be determined—see below. What is meant by intestate is that if you die without a properly executed testamentary instrument (such as a will or trust), the distribution of your assets will be governed by the intestate laws of the State in which you are domiciled at the date of your death.
In other words, each state has drafted a default estate plan to govern who should receive a decedent’s assets in the absence of a properly executed testamentary instrument.
In Idaho, the laws of intestate succession can be summarized as—down (issue, i.e. children), up (parents), and out (siblings, cousins, etc.) with specific rules for succession that relate to a surviving spouse. Idaho code provides that with respect to intestate succession when the decedent is survived by a spouse, the decedent’s interest in community property (all property acquired during marriage except by gift or inheritance and kept separate) passes to the surviving spouse. SeeI.C. 15-2-102. It further provides that the decedent’s interest in separate property (acquired before marriage or during marriage by gift or inheritance and continuously kept separate), will pass one-half to the decedent’s issue (children, and down, as appropriate per any predeceased issue) or if the decedent died without issue, one-half to the decedent’s parents. If the decedent died without surviving issue or parents, the decedent’s interest in separate property will pass entirely to the surviving spouse.
In the case of intestate succession for an individual who dies without a surviving spouse, issue, or parents, the estate would be split in half, with one half passing to heirs on the decedent’s paternal side and the other half passing to heirs on the decedent’s maternal side--siblings (if any), then first cousins, first cousins once removed, etc., depending on predeceased heirs. Only in circumstances where an individual dies without such living relatives or where it is impossible to determine the decedent’s relatives or when no one steps up to take on that task, will the decedent’s property escheat (pass) to the state.
For some people, such as the case with a decedent of a long-term marriage where all property is community and there is a surviving spouse, the effect of intestate succession may accomplish what the decedent wanted anyhow. Or, in the case of a couple with only joint children, intestate succession may accomplish want the parents would have written up in a testamentary instrument if they had executed one. But, the circumstances of many families are such that intestate succession would not achieve the decedent’s desired outcome. In the case of a decedent survived by stepchildren for example, you can imagine situations where because of the closeness of the stepparent-child relationship, stepchildren would be shocked and hurt to be unintentionally disinherited by the state’s intestate succession laws.
Besides being able to determine who gets your assets, another objective you can achieve through planning is to nominate individuals you want in charge of administering your estate and distributing your assets. You can also express your instructions for the administration of your estate on issues such as: waiving bond, having certain expenses paid, and passing assets free of secured debt, among other issues. Thus, even if the intestate plan of distribution works well for you and your family, there are still important objectives that you can accomplish by executing a testamentary instrument.
Even spouses who only own community property and want to leave everything to each other benefit from engaging in some estate planning. Through planning, those spouses can ensure that the surviving spouse will not have to engage in any court administration of the deceased spouse’s estate in order to confirm title to the assets in the surviving spouse’s name. And while you cannot avoid the necessity for court administration just by having a will, there are other planning techniques that can be utilized to accomplish that purpose. In next month’s blog, we’ll explain what court administration (aka “probate”) is and the techniques that can be used to avoid probate, if that is a desired outcome.