What Happens When You Die Without A Will?

Paul Tarins, RICP®,WMCP®,CSRIC™

Tony Hsieh, the former CEO of Zappos, died at 46 due to smoke inhalation from a house fire over the Thanksgiving holiday. Several months prior, Hsieh retired from his position as CEO of Zappos with an estimated net worth of $840 million.¹ Since his death, his family has determined he died intestate, meaning he had no will. In response, his family has filed for access to the former CEO’s accounts and assets.²

Earlier this year, the “Black Panther” star Chadwick Boseman lost his battle with colon cancer. Boseman also died intestate. His wife has since had to file paperwork in probate court to gain access to his estate, which has an estimated value of about $938,500.³

The moral of the story? No one, no matter how much they have, is immune to an untimely death. And while you may not have a net worth of $840 million, your assets are still significant and require proper planning.

In this article, we will discuss the implications of intestacy and what happens if you die without a will.

Understanding Intestacy

In simple terms, if you die without a will, the state will essentially make one for you. This means your estate passes through something called intestate succession. The purpose of intestate succession is to have one’s assets passed on to their heirs as they (meaning an ordinary, reasonable person) likely would have wanted. This, of course, requires assumptions on behalf of the state that may not always be accurate. So, if you had something different in mind regarding your retirement planning and estate planning, it may not materialize the way you wanted it to if you don’t have a will.

Each state will differ in how intestate succession proceeds, but it’s common that an individual’s close relatives would be granted assets first. Close relatives could include a surviving spouse, descendants (children or grandchildren), parents, siblings, nephews and nieces, grandparents, etc.

Who Should Have a Will?

Only 44 percent of Americans have a will. While that number alone is troubling enough, here’s the kicker: that number has actually declined in recent years. In 2005, around 51 percent of Americans reported having a will.¹ It should come as no surprise, however, that the majority of will-holders were older Americans. And while that’s understandable, the hard truth is - anyone can die at any age. Remember - both Hsieh and Boseman were only in their forties when they passed earlier this year.

So regardless of how young you are, it is important you consider what happens if you die without a will. Moreover, it doesn’t matter what your net worth is at the moment. In the end, whether you have a couple thousand or a couple million in the bank, you should have a will. A will lets others know how you would like your belongings cared for and distributed after your passing. Without one, there’s a much higher chance of your assets ending up in the hands of those you may not have wanted to. It’s also a source of additional distress and costs your surviving loved one unnecessary time, hassle and legal fees.

Additions to a Will and Common Misconceptions

Some people often confuse things like a Durable Power of Attorney, a Living Will, and a Healthcare Proxy as substitutes to a Last Will and Testament. This is incorrect. These legal documents have different purposes and need to be included as part of your estate plan.

Let’s take a look at what they are.

Durable Power of Attorney

A power of attorney is a legal document where a Principal appoints an Agent authorized to handle matters related to healthcare, property, or finances on their behalf. A durable power of attorney remains in effect in the event you become incapacitated, for instance, due to an accident or an illness.

There are certain limitations to how a durable power of attorney can be used. For instance, an Agent can use it to pay your medical bills on your behalf. However, they cannot make decisions regarding your health. For instance, they cannot instruct the doctors to stop treatment or take you off life support.

The Principal can revoke their power of attorney at any time if they are mentally competent.

You should consider preparing a durable power of attorney during retirement planning and when you are preparing for long-term care. Bear in mind it cannot substitute a will and becomes null and void after the Principal’s death. Moreover, even when you are alive, an Agent cannot use a power of attorney to create a will or make changes to an existing will.

Living Will

A living will is a legal document specifying advance decisions regarding healthcare in certain situations. It describes how a person wants to be cared for if they can’t make their own decisions. You can use it to accept or refuse certain treatments if you become incapacitated. For instance, you can specify that you do not want doctors to use cardiac resuscitation, tube feeding, kidney dialysis, and mechanical respiration to prevent you from dying.

A living will can also appoint a healthcare agent responsible for ensuring your previously recorded wishes are followed.

As is evident, a living will differs significantly from a last will and testament.

Healthcare Proxy Form

The Healthcare Proxy form is an essential legal document that works a bit similarly to a durable power of attorney. It helps you appoint a person you trust as your healthcare agent. This healthcare agent can make healthcare decisions if you no longer possess the ability to do so.

You can communicate your wishes to your healthcare agent. They can also determine whether your wishes still apply, depending on changes in your condition. Furthermore, you also decide the extent of their authority. For example, you can give them the authority to make all healthcare decisions or specific ones.

In a Nutshell: What Happens If You Die Without a Will?

Creating a will is an essential part of retirement planning, and the sooner you prepare one, the better.

While proportionately more high-net-worth people have Wills or Trusts than those with low-to-moderate income levels, that doesn’t mean millionaires and billionaires are always prepared. High-profile high-earners like Aretha Franklin, Prince, Jimi Hendrix and Pablo Picasso all died without a proper will in place.⁴ For many, this left their heirs and their estates tangled up in years of costly and unnecessary legal battles.

Money aside, the fights that ensue for a passed love one’s estate can be messy and scarring. A lack of proper planning can leave family ties permanently severed, especially for those battling over a significant amount of assets.

Leaving this world with a proper will in place is a final and important gift you can give your loved ones. It avoids long legal battles, exorbitant fees and unnecessary headaches – all the things a grieving family wants to avoid.

If you haven’t already, talk with your financial professional about the future of your estate. They may be able to help you directly or refer you to an estate attorney who can begin the drafting process.

References

Paul Tarins is an investment adviser representative of and offers investment and advisory services through Portfolio Medics,a registered investment adviser. Nothing contained herein should be construed as a solicitation for investment advisory services. Sovereign Retirement Solutions and Portfolio Medics are not affiliated.