When you die without leaving a Will or if your Will cannot be found, the laws of your habitual residence or the laws where your property is situated lay down who gets what. These are called the rules on intestate succession.
Obviously, the law does not take into account how your relationship was with those people when you were still alive. By drafting a Will that says who will get what after you die, you limit the risk that your estate goes to distant or estranged family (members).
Do note however that in certain states and countries, the law does not allow you to completely disinherit completely certain categories of persons.
General Rules on Intestate Succession Consequences of Intestacy 1) Uncertainty over guardians 2) Delay in settlement 3) Unintended consequences
General Rules on Intestate Succession
Without going into the particularities of every state and every country, intestate succession is usually devolved as follows:
Spouse, no children: the spouse gets everything.
Children, no spouse: divided between the children.
Spouse and children: divided between the spouse and the children.
Spouse and parents, no children: divided between the spouse and the parents.
Parents, no spouse, no children: divided between the parents.
Siblings only: divided between them.
Grandparents only: divided between them.
Uncles and aunts only: divided between them
None of the above: the state.
Note that the order and the percentage may be different in your state or country
Consequences of Intestacy
If you pass away intestate, a number of issues can arise and these go beyond organizing your attic that has been untouched for 2 decades.
1) Uncertainty over guardians
If both parents pass away at the same time, guardianship over their children will be uncertain. Very often, disagreements may arise as to who is the most suitable person to be the guardian.
In some cases, the ex-spouse may be able to gain access physically to the assets as the other parent of the children. Of course, there is always a (valid) reason why an ex-spouse is an ex.
2) Delay in settlement
The most common issue in the absence of a Will is that the probate/authentication process gets more complicated. With a lack of instructions, an executor/administrator needs to be identified and appointed, thus delaying everything.
If you were the sole breadwinner, your family will go through financial distress during this period as the estate will not be available until much later.
3) Unintended consequences
Most importantly, the distribution of assets may not reflect what you had in mind. Very often, elderly parents will be excluded if the deceased leaves behind a spouse and children. A stepchild whom you have brought up but was not adopted by you may also end up receiving nothing.
This is even more critical if this stepchild has not reached his adulthood and may be financially dependent on you. When appointing administrators, the law gives priority to the next of kin of the deceased person’s family. Realistically speaking, this may not be in accordance with your wishes.
Writing a Will and updating your Will regularly is the very first step, and it’s an important one. But more importantly, you should register your updated Will and store it in a safe place. liteWill lets you register your Will and store an electronic copy of your Will. Otherwise, all the good work that you have done becomes irrelevant if your person of confidence is not able to find your Will in a timely manner. ‘A Will that is not registered is like a Will that does not exist’.
This portion of the website is for information only. The statements and opinions are the expression of their author, not of liteWill, and have not been evaluated for accuracy, completeness or changes in the law. Information contained in this article is not a substitute for tax or legal advice.
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