When one dies without a will, commonly referred to dying intestate, the laws of the state where the decedent resided at the time of his or her death determines what happens to that person’s assets. In many states, where one dies leaving a spouse and no children, all assets go to the spouse. If there is a spouse and children, a portion of the assets (oftentimes 1/2) goes to the children. If there are no spouse and children, then other heirs are next in line, usually parents and siblings.
What is the problem with dying intestate? First of all, the distribution of the assets is not necessarily what the person would have wanted in the first place. If the decedent leaves minor or disabled children, assets going to them will cause a great deal of complexity and result in a good amount of legal fees being incurred. Also, if one dies without a will, then it is up to a family member to come forward and ask they be appointed the administrator. If one prepares a will, one can choose who will have the job of administering the estate, and hopefully that choice will be a person who is capable and honest. Lastly, if one dies without a will, the court will inevitably require the proposed administrator to post a bond, to make sure that person does not run off with the funds. If one has a will, it usually contains a clause dictating that no bond be required, and most courts will honor that.
One thing to keep in mind, regardless of whether or not you have a will, is that one can designate beneficiaries on most assets, with the exception of real estate and cooperative apartments. If you have beneficiary designations listed, then those designations control regardless of what the will states and regardless of what the state law says about dying without a will.
In all cases it is extremely important to have a will, or to have a revocable living trust, so that one’s assets are distributed in accordance with one’s wishes and no determined by state law. It is also an important aspect that by preparing a will or trust you alone can decide who will handle your estate when you pass.