By Ilya Lyubimskiy, JD, CPA | Estate Planning & Probate Attorney and Author of I Wish I Talked to You Sooner
If you die without a will, your property does not simply disappear, and the government does not automatically take everything you own. But you do give up the opportunity to make several important decisions yourself.
Instead, state law determines who inherits property that is subject to intestacy, and a court may need to appoint someone to administer the estate.
The legal term for dying without a valid will is dying intestate. Intestacy laws vary from state to state, but every state has rules establishing who inherits when someone dies without leaving valid instructions.
As an estate planning and probate attorney, I think one of the biggest misconceptions about estate planning is that doing nothing means you have chosen simplicity.
You haven’t.
Doing nothing is still a choice. You are simply allowing the law to make many of the choices for you.
Who Gets Your Property If You Don’t Have a Will?
That depends on where you live and which family members survive you.
State intestacy statutes generally establish an order of inheritance involving relatives such as spouses, children, parents, siblings, and sometimes more distant family members. The exact formula can vary considerably depending on your family situation.
That statutory formula may happen to match what you would have wanted.
But it may not.
Perhaps you are unmarried and want your longtime partner to inherit.
Maybe you want to leave something to a close friend, stepchild, charity, or other person who would not otherwise inherit under state law.
Perhaps you want one family member to receive a particular asset for a specific reason.
Intestacy law does not know any of that.
It does not know who helped you through a difficult period, which sibling you are closest to, whether you consider your stepchild your own, or whether there is a charity that has been important to you for thirty years.
It applies the legal formula.
A will allows you to provide the instructions instead.
Does Everything You Own Follow Intestacy Law?
Nope. This is an important distinction.
Some assets can pass outside your will and outside the intestacy process.
For example, retirement accounts, life insurance, payable-on-death accounts, transfer-on-death accounts, jointly owned property with survivorship rights, and assets held in a properly structured trust may pass according to their own ownership or beneficiary instructions.
That means dying without a will does not necessarily mean every asset you own follows the state’s intestacy statute.
But it creates another potential problem:
Your estate may become a patchwork of unrelated instructions.
One account may pass to a beneficiary you named fifteen years ago.
Another asset may pass automatically to a joint owner.
Your remaining probate property may be divided according to state law.
The result may be very different from what you would have designed intentionally.
That is why an estate plan is more than a will. Your documents, account ownership, beneficiary designations, and other instructions should work together.
Who Is in Charge of the Estate?
When you create a will, you can nominate the personal representative (a/k/a executor) you want to administer your estate. Without a will, you lose the opportunity to make that nomination.
Someone will generally need to ask the probate court for authority to administer the estate, and state law establishes who has priority or eligibility to serve. Colorado, for example, has a separate probate procedure specifically for estates in which the person died without a will.
That may result in exactly the person you would have chosen.
Or it may not.
And if multiple family members disagree over who should serve, an already difficult situation can become more complicated.
Choosing your own decision-maker in advance removes one more question your family would otherwise have to answer after you are gone.
What Happens If You Have Minor Children?
This is one of the most important reasons parents should consider creating a will.
A will can be used to nominate the person you want to serve as guardian for your minor children if both parents are gone.
The court ultimately has responsibility for making the legal appointment under applicable state law, but your written nomination gives the court important evidence of your preference.
Without that nomination, the court and your family are left without your written guidance.
Maybe everyone agrees about who should raise your children.
Hopefully they do.
But estate planning is not supposed to depend entirely on everyone agreeing during one of the most emotional periods of their lives.
This is a decision worth addressing while you are able to make your wishes clear.
What About Stepchildren and Unmarried Partners?
This is where relying on assumptions can be especially dangerous.
People often think:
“Everyone knows she’s my partner.”
Or:
“I raised him like my own son.”
Emotionally, those statements may be completely true.
Legally, however, relationships do not always carry the inheritance rights people assume they do.
Whether an unmarried partner, stepchild, or another person inherits without a will depends on applicable state law and the legal relationship involved.
If someone is important enough that you want to make sure they are protected, hoping the law reaches the same conclusion is not much of an estate plan.
Put the intention in writing.
Does Dying Without a Will Avoid Probate?
No.
This is another common misconception.
Probate does not happen because you created a will.
Probate is the legal process used to administer certain property after death.
A will gives the probate court your instructions.
Without a will, probate may still be necessary. But the estate is being administered under intestacy law instead of your written wishes. Colorado’s court system, for example, provides probate procedures for both estates with wills and estates without them.
As I explain in I Wish I Talked to You Sooner, the issue is not simply whether the court becomes involved. It is how much direction you left behind before the court became involved.
An Estate Plan Also Protects You Before You Die
There is another problem with focusing only on the question, “What happens if I die without a will?”
You might not die.
You might become temporarily unable to manage your own affairs.
An accident, stroke, serious illness, or cognitive decline can leave someone alive but unable to handle finances or make healthcare decisions.
A will does nothing for that situation.
That is why a complete estate plan often includes tools such as financial and healthcare powers of attorney.
Without appropriate financial authority in place, family members may discover that being a spouse, child, or close relative does not automatically give them access to another person’s financial accounts. In some circumstances, court involvement may be necessary to obtain legal authority.
Likewise, healthcare planning allows you to identify who should speak for you and provide guidance about your wishes if you cannot communicate them yourself.
This is why I prefer to talk about estate planning, rather than simply “having a will.”
The plan should protect you while you are alive as well as provide direction after you are gone.
What Does Your Family Have to Figure Out Without a Plan?
Consider the questions that may suddenly land on the people you love:
Who should be in charge?
Who inherits?
Where are the accounts?
Are there life insurance policies?
What would you have wanted?
Who should care for the children?
Who can deal with the bank?
Who can speak with the doctors?
Where are the important documents?
Families can work through these problems.
They do it every day.
But that does not mean we should deliberately leave them the assignment.
The book’s message is that planning ahead turns uncertainty into guidance and reduces the amount of guessing family members must do under pressure.
“My Family Will Figure It Out” Is Not Really a Plan
I hear variations of this idea all the time.
“My kids get along.”
“My spouse knows what I want.”
“There’s not enough money to worry about.”
“My family will take care of it.”
Maybe they will.
But even loving, cooperative families still need legal authority, information, and instructions.
And grief has a way of making seemingly simple decisions harder.
Estate planning is not about assuming your family will fight.
It is about making sure they don’t have to guess.
Doing Nothing Does Not Mean Nothing Happens
This may be the most important takeaway.
If you never create an estate plan, there is still a process.
Property still has to be transferred.
Bills still have to be paid.
Accounts still have to be located.
Someone still has to take responsibility.
Children still need care.
Medical and financial decisions may still have to be made before death.
The question is not whether these decisions will happen.
The question is who gets to make them and how much guidance you leave behind.
That idea sits at the heart of I Wish I Talked to You Sooner: How to Avoid the Worst Estate Planning Mistakes. Too many families first learn how estate planning works after an illness, death, or emergency has already taken the choices out of someone’s hands.
Planning sooner does not eliminate every difficulty.
It simply allows you to answer important questions while they are still yours to answer.
Learn more about I Wish I Talked to You Sooner and how to avoid the estate planning mistakes families too often discover when it is already too late.
About the Author
Ilya Lyubimskiy, JD, CPA, is a Colorado estate planning and probate attorney, Certified Public Accountant, and founder of Premier Legacy Law. He is the author of I Wish I Talked to You Sooner: How to Avoid the Worst Estate Planning Mistakes. Through his legal practice, he helps individuals and families navigate estate planning, probate, and trust administration with an emphasis on practical planning and avoiding preventable problems.
