What Happens If I Die Without A Will?

I get this question a lot when doing financial plans and it’s a valid question whether you are a young family or approaching retirement.

But first, this is not legal advice. I am not an attorney and have never been an attorney. Please consult an attorney if you have any legal questions. Did I mention that I’m not an attorney?

Now that that is out of the way, this article is intended to highlight the need to get a proper estate plan in place by using an attorney.  

It is important to know there are two important asset transfer tactics that apply before a Will.

The first is titling. For example, an account can be owned by two people and titled as Joint Tenants With Rights of Survivorship.  This means that the joint owner would automatically inherit the account when the first person dies, regardless of what a Will says.

The second is a beneficiary designation.  An asset with a beneficiary designation will pass to that beneficiary regardless of what a Will says.  The beneficiary designation would not apply if the asset was joint and only one owner died.

Titling applies before beneficiary designations and beneficiary designations apply before your Will. 

Any other assets will typically be a part of your probate estate, which is governed by a Will.  Your Will allows you to determine how these assets would be distributed.  

So what happens if you die without a Will?  No, the state doesn’t get your money. However, the state you live in does determine what happens to it, and the rules  vary from state to state. This article will focus on Maryland rules. The information below was copied directly from Maryland’s website at https://registers.maryland.gov/main/publications/infoguide.html.

“How will my estate be distributed if I die without a Will?”

IF THE DECEDENT IS SURVIVED BY:

1. Spouse and minor children of the decedent- spouse receives one-half, children share remaining one-half
2. Spouse and children (all adult) of the decedent-spouse receives $40,000 ($15,000 if date of death is prior to 10/1/2017) plus one-half of remaining estate-children divide balance (the interest of a predeceased child passes to issue of that child)
3. Children only of the decedent-children (does not include step-children) divide entire estate (the interest of a predeceased child passes to issue of that child)
4. Spouse and parents of the decedent- spouse receives $40,000 ($15,000 if date of death is prior to 10/1/2017) plus one-half of remaining estate, if married less than 5 years – both parents divide balance or surviving parent takes balance. (If married more than 5 years see #5)
5. Spouse of the decedent without other heirs listed above-spouse receives entire estate
6. Parents of the decedent without other heirs listed above-both parents divide entire estate or surviving parent takes all
7. Brothers/sisters of the decedent without heirs listed above-brothers and sisters divide estate equally (share of deceased sibling goes to their issue-nieces and nephews of the decedent)
8. Grandparents without other heirs listed above-grandparents divide entire estate or, if deceased, to their issue (see applicable law for details)
9. Great-grandparent without other heirs listed above-great-grandparents divide entire estate or, if deceased, to their issue (see applicable law for details)
10. Step-children-if there are no heirs listed above
11. No living heirs or step-children-If decedent was a recipient of long-term care benefits under the Maryland Medical Assistance Program at time of death, net estate is paid to Department of Health and Mental Hygiene. Otherwise, the net estate is paid to the Board of Education.

All references to “Estate or Administration” mentioned above  mean that the estate only control assets that are in the decedent’s name alone or as tenants in common.

There are other ramifications to dying without a Will, especially if you have minor children.  Without naming a guardian, a court will determine who your children’s guardian would be. Even if it ultimately ended up being the same person you would have named, it can come with more court oversight, which is burdensome and costly.  Why take the chance? Most people are shocked to learn their minor children will get half of their estate if their spouse dies. I certainly was when I first learned this.

Estate planning is significantly more complicated than this article has made it seem, especially when marriage comes into the equation for people retiring single.  The important thing to remember is that an attorney can help you draft the proper legal documents needed to ensure your children are taken care of how you want and that your assets transfer to the people you want.  This can involve much more than a Will.

Working with an attorney on an estate plan will usually include two other documents.  The first is a Power of Attorney that allows you to name someone to act on your behalf regarding your financial affairs.  An Advance Directive combines a Living Will and a Healthcare Power of Attorney so you can “pre-make” some medical decisions and name somebody to make future medical decisions for you if you become incapacitated.

Like most areas of personal finance, your estate plan affects the rest of your financial plan and the rest of your financial plan affects your estate plan.  Plan accordingly.