If you die intestate,
or without a will, your assets will be distributed according to the laws in your state of residence. These laws may or may not divide the estate according to your wishes.
While the estate will typically go to your spouse and children, that won’t always be the case in every state and in every situation. And your children may get money when you might instead prefer everything to go to your spouse. Without a will, you won’t have any chance to say who gets what.
This can lead to arguments among heirs as to who gets items of personal property such as art, jewelry, china, and other keepsakes. If these disagreements can’t be settled, the court might order that the property be sold.
If you have minor children but don’t have a will that names a guardian for them, and if their other parent isn’t alive or an appropriate choice, a judge will decide with whom they live and who manages their money. And without a will these beneficiaries receive any remaining inheritance at majority, typically age 18, with no consideration for whether they are ready or able to manage it.
Intestacy laws have probably even greater impact if you don’t have a spouse or children, as state-selected heirs may not be the ones you would choose yourself. You might prefer the money go to charity or to a favorite cousin while the state says it should go to your siblings’ children.
In all but a handful of states having a will is critically important for nontraditional couples, including same-sex partners or those who simply choose not to marry for personal reasons. Your partner is generally entitled to nothing from your estate unless you have a will that leaves them a share. A will is one of the ways you can clearly express your wishes and help minimize legal challenges.
An unusual rule
In Tennessee Williams’ A Streetcar Named Desire, even Stanley Kowolski knew the rules were different in Louisiana. As he reminds his wife, Stella, “We’ve got in the state of Louisiana what’s known as the Napoleonic code.” In Louisiana, if you die without a will, your property — both personal and community — passes not to your spouse as you might expect but to your children or to other family members if you have no children. The only way to ensure your spouse has first claim on these assets is to draft a will.
The surviving spouse does have a “usufruct” over the deceased’s community property, which generally gives him or her the right to use that property and receive any income from it. But this right terminates at the spouse’s remarriage or death. If you don’t have children, your surviving spouse gets all community property, with any separate property passing to your siblings, with a usufruct to your parents if they are still living.
If you die intestate,
or without a will, your assets will be distributed according to the laws in your state of residence. These laws may or may not divide the estate according to your wishes. 