Aretha Franklin is the latest in a long line of musicians who died “intestate” or without leaving a Will. Prince, Amy Winehouse, Bob Marley, and Jimi Hendrix—to name a few—also all famously died intestate. While a famous person dying intestate may get more attention than the average Joe passing without a Will, the reality is that the rules are the same for rich and poor alike.
No matter how large (or small) an estate, intestacy is not an ideal option. At the very least, a Will and basic estate plan can ensure loved ones are protected and a decedent’s wishes are carried out as they intend.
Without a will
In the absence of a Will, estates pass according to the intestacy statute of state of residence. For example, in Kentucky, if a married person with two children dies intestate, half of her estate will pass to her spouse, and half will be divided equally between the two children. But an individual’s wishes may not match what state law requires for intestate succession. (Imagine the surprise of a widow with no children to learn that, in the absence of a Will, half of her deceased husband’s assets will pass to her mother- and father-in-law!)
Such scenarios can be avoided with the drafting and execution a simple Will. A Will is a legal document through which one disposes of property owned in his or her individual name, appoints a personal representative (also called an “executor”), guardian of minor children, and a trustee, if appropriate, and grants these fiduciaries certain powers to act, among other matters.
Wills don’t have to be complicated—in Kentucky, for example, “holographic wills” are permitted. A “holographic will” is a Will written entirely in the testator’s handwriting and signed and dated at the end. Of course, a holographic Will can be disputed and such documents are often the subject of prolonged and expensive litigation. Thus, it is better to hire an attorney to draft a Will at a reasonable expense. This will ensure the Will meets all legal requirements while accurately expressing one’s intent.
Beyond the will
Finally, while a good estate plan starts with a Will, it does not end there. It is unlikely that all assets are passed to the surviving family through a Will. For example, any asset with a beneficiary designation—like a life insurance policy or investment account—will pass outside of the Will to the beneficiary designated. If no designation is made, the assets pass to the estate, according to the terms of the Will or, in the absence of a Will, to the persons designated by the intestate laws of the decedent’s state of residence.
It is important to review all accounts, including life insurance, bank, retirement or other financial accounts with beneficiary designations, real property titled jointly with right of survivorship, etc., to confirm that they are accurate and up to date. In addition, applicable state law may provide certain rights to heirs that a simple Will cannot adequately address. In Kentucky, a spouse has a right to elect against a deceased spouse’s Will and take his or her dower or curtesy share of estate property unless the surviving spouse has waived such rights pursuant to a valid pre- or post-nuptial agreement. Thus, it is always important to consult with an attorney to determine what additional steps are necessary to protect one’s wishes and assets. Regardless of the circumstances, it’s never a good idea to leave these matters to chance.