WHAT HAPPENS IF YOU DIE WITHOUT A WILL
In a nutshell, if you don’t have one and you die, the Georgia Legislature (you know, the collection of politicians that hang out in that gold-domed structure in Atlanta) decide who gets your stuff and a court will decide what happens to any minor children or other people you are responsible for.
We get busy and we don’t get around to making a will, or we don’t want to spend money on it because, well, there’s always something else. As a result, a lot of folks die without a will. If that happens, a state will apply some laws called intestacy statutes to figure out what to do with all of your stuff and the people you are a guardian for. This is a short primer on what will happen to your things and to your family under those statutes.What a will basically does is allow you to “opt out” of the default plan. We’ll talk about your stuff first, then your kids. Here is the default plan, which is a combination of statute (courtesy of your state legislators) and common law (for which you can thank judges.)
IF YOU ARE SURVIVED BY A SPOUSE BUT NO DESCENDANTS. . .
Here, the descendants are children, grandchildren, great-grandchildren, legally adopted children – basically your kids and progeny. If you have none but you have a spouse, your spouse takes the entire estate – all the money, possessions, real estate – the whole thing.
IF YOU ARE SURVIVED BY A SPOUSE AND ONE OR MORE DESCENDANTS. . .
This is where you might start to have issues, because the spouse takes the greater of a child’s share or 1/3 of the estate. So if you are married with two children, your spouse gets 1/3, and each of your two children get 1/3 of the estate. If you’re married and have 4 children, the spouse gets 1/3, and the children split the remaining 2/3 equally. This might cause you problems if you want your spouse to take the whole estate, or to take more than 1/3. Many people would probably prefer their surviving spouse to take the whole thing while he/she is still alive. If you haven’t made a will, that’s not what you’ve got.
IF YOU ARE NOT SURVIVED BY A SPOUSE. . .
Then your estate goes in this order:
- To all descendants, if there are any.
- To parents or the surviving parent.
- If there are no descendants or parents, to brothers and sisters.
- Then to more distant relations as specified by the statute.
WHAT HAPPENS TO MY MINOR CHILDREN THEN?
That’s a really good question and your guess is as good as mine. A court will have to decide. Courts do their best with this and that’s all they can do. If you die and you leave no instructions, the court will try to figure out among your family who is the best person. Courts have worked out ways to assess the best place but it might not be what you would have picked. If they can’t work it out among the obvious choices of close family relations, there are state guardians and foster homes and similar solutions. Keep in mind that your assets and money will still (probably) be divided up according to the formula above. It will be difficult and complicated for a court and your estate’s administrator to get those assets consolidated so that whoever the court puts in charge of your kids will have your assets to care for them with. All of this is a reason to have a will and to have one crafted by Divis Law.
WHY SHOULD I PAY AN ATTORNEY FOR THIS?
At Divis Law we will take the time to get to know you and your family and understand your values. We will help you construct a plan using a will, trusts, and any other legal documents that are necessary to make sure your legacy lives on. We will follow up with you from time to time to help you keep your plan current. When you have an attorney craft your estate documents, you and your beneficiaries get some protection from the attorney’s malpractice policy and the ethical rules governing lawyers. At Divis Law, we will also help you write an ethical will for free. These documents are not legal documents, but rather personal ones. They are a way for you to communicate with your loved ones after you are gone – something to leave behind to explain your values, priorities, and feelings. We will keep these documents safe just as we will your legal documents, and ensure that their delivery is part of the administration of your estate. We actually encourage you to do this before you begin the rest of your estate plan, as it can help to center you on what your values are and on what is most important to you. We will quote you a flat fee for all of this. What is it worth to know it’s done right and that it reflects who you are?
We know it’s hard. Our founding attorney was a paratrooper. A couple times a month he was sure he was about to die, because that’s how he felt every time he jumped from an airplane. From that experience he realized that not thinking about it doesn’t make it go away. It just makes a mess for those you leave behind. Don’t look at it as a time to think about death. Think about it as a time to leave your impression in the world. Contact Divis Law for a free consultation.