With no will or a will that is found to be invalid, the laws of the state determine what happens to any remaining assets. In most cases, only spouses, civil partners or close relatives are legally permitted to inherit from a person who dies without a will. As many estate planning attorneys like to say, if you don’t have a will, the state has one for you—but you might not like it.
Influencive’s recent article looks at what happens if you die without a will. The article, “How Estate Planning Works for Those Who Die Without a Will,” explains that if a person dies without a valid will in place, things may get tricky pretty fast. Some common questions include: What becomes of a mortgage, if the mortgagee dies? What happens to a home, when the owner dies? What becomes of a person’s bank account? How is next of kin determined?
When a property owner with a mortgage dies, the promissory note allows the creditor to get paid from the estate. If the estate can’t fully repay the mortgage, the lender may begin the process of selling the property. When a sole homeowner dies, the home is transferred according to the will. If he or she dies without a will, it is transferred, according to state intestacy laws. Those laws determine who qualifies as next of kin and thereby inherits the estate.
If a couple jointly owns their home and were joint tenants when the first partner dies, the surviving tenant will inherit the other’s share of the property. However, if the partners are tenants in common, the surviving partner doesn’t automatically inherit the other person’s share.
Typically, there are four primary requirements that form the foundation of a valid will:
- The will must have been drafted with testamentary intent;
- The testator must have testamentary capacity;
- The will must have been drafted without fraud, duress, or mistake; and
- The will must have been duly executed.
Married and civil partners inherit assets following the rules of intestacy, if they are legally married, or in a civil partnership, when they die. If they only have been living together without any formal union -- as many people do in California -- the surviving partner may be in a world of hurt as she/he tries to assert a claim against the legal heirs. If you are divorced, you won’t inherit anything -- except if you still are named as a beneficiary of a qualified retirement plan.
To save your loved ones from the complex, expensive and stressful process that takes place when there’s no will, make an appointment with an estate planning attorney.
Reference: Influencive (July 10, 2018) “How Estate Planning Works for Those Who Die Without a Will”