As an estate planning attorney, I, of course, always recommend that everyone should have an estate plan. But, what happens if you don’t have one? The following are a few of the circumstances resulting from not having an estate plan.
1. The State of North Carolina, not you, determines who inherits your estate.
One purpose of a will is to state who gets your assets, whatever they may be. If you die “intestate,” i.e., without a will, then North Carolina law specifies who gets your property. In some instances, the people receiving your assets will be the persons whom you would want. For instance, if you die unmarried, with living children, your estate will go to your children.
In other instances, your property may not go the way you might expect. For instance, if you die married with living children, then your estate will be split between your spouse and your children. It will not go, as you might expect, all to your spouse. This is true even if your children are minors and not capable of managing their own assets. In another instance, if you die married with no children, but with a parent living, your estate will be split between your spouse and your living parent. It will not go, again as you might expect, all to your spouse.
2. The State of North Carolina determines who handles the administration of your estate.
If you have a will, you designate who will handle the administration of your estate, i.e. who your executor is. Without a will, North Carolina law sets up a pecking order of who has the right to administer your estate. Again, this may be the person you would choose, but it may not. More importantly, in some instances more than one person may have an equal right to serve as administrator, which can lead to conflict over who will do it. For instance, if you die unmarried with multiple children, each child has an equal right to serve. This could lead to a dispute amongst siblings. For example, one child may not be capable of handling the matter, even though they are unwilling to admit it.
3. Minor children issues are not dealt with.
If you have minor children, especially if the other biological parent is not living, then having a will allows you to address certain needs relating to the minor children. First, with a will, you have the opportunity to designate who the “guardian” of the minor children will be, i.e., who will have physical custody of the children until they reach the age of majority [age 18].
Second, minors are not legally able to own and manage assets. Having a will allows you to set up a trust to handle the assets of the minors until they reach the age of majority. Without a trust, then someone has to go to court and qualify as the “guardian” of the minor’s assets. This is a cumbersome process to initiate and manage until the minors turn 18. The guardian is required to file annual accounts to the court and must ask the court for permission to expend monies for the benefit of the minors in certain instances. Lastly, at age 18, the property must be distributed to the minors. I submit that most 18 year olds are not mature enough to handle significant assets. With a trust, you can extend control over the minor’s assets until they reach a more appropriate age.
4. If you don’t have a will, you likely don’t have a financial power of attorney.
Developing an estate plan involves more than a will. Other issues need to be dealt with. One of those has nothing to do with what happens after you die, but more with what happens if you are alive, but incapacitated. In particular, who will handle your assets, pay your bills, etc., if you are in an accident or suffer a medical condition leaving you unable to handle your financial affairs? If you have a financial power of attorney, then you have appointed someone who has the legal authority to handle these matters for you.
If you don’t have a financial power of attorney, then like the case of the minor above, someone has to go to court and be appointed as guardian of your assets, with all the attendant headaches — getting qualified, filing inventories, requesting approvals for expenditures, etc.
5. If you don’t have a will, you likely don’t have a heath care power of attorney or living will.
Another issue covered in the typical estate planning process is having documents dealing with certain health care issues. One of those documents is a health care power of attorney. In this case, you designate an agent to make health care decisions for you in the event you cannot make them due to your medical condition. This is especially important in second marriage situations in order to avoid disputes between the current spouse and the children of the prior marriage. The document can also deal with issues relating to funeral and burial arrangements.
Typically, clients also have an “advance directive” that specifies their desires regarding the use of extraordinary life sustaining treatment, such as artificial nutrition and hydration, in the event you are in a permanent coma or other incapacitated medical condition.
6. Beneficiaries may not be consistent. Your funeral or burial preferences may not be known or followed through.
I typically address other related issues while formulating an estate plan. One of these is to check and update beneficiaries on life insurance or retirement plans. Many people don’t understand that the beneficiary designations will determine who gets the insurance/retirements plans assets, not the will. So, it is important to make sure that these designations are consistent with their desires and keep those beneficiaries up to date.
I also recommend to my estate planning clients that they think about what they want regarding funeral and burial arrangements, to write it down [we provide a form], and to make sure the person who will handle such matters knows what your desires are.
It is important to remember that, in doing the work to have an estate plan, you are not really doing it for yourself. After all, you won’t be around to care! Instead, you are doing this work to make your passing as easy as possible for the family you leave behind. Do it for them, if not for yourself.
This article was first published on April 19, 2017 and updated on July 31, 2020.