Estate planning
What Happens if You Die Without a Will?

What Happens if You Die Without a Will?


Jennifer Mcgee


Updated on  

March 17, 2023

4 mins


If this question crosses your mind, you may be curious about the risks of not having your last will and testament in place or floating the idea of doing it sometime soon but not sure if it's worth it. 

Getting a Will done seems like an overwhelming process, so it's important to understand the reasons even to bother going about it. The simple answer would be that the state's intestate succession laws would be followed if you die without a last will and testament. These laws are what decide who would get your estate from your family and blood relatives, irrespective of the bond or love you share or don't share with them. Let's understand this better with an example.

Did you hear about John?

‍John and his wife have lived separately from each other for the last year but haven't yet taken the step of getting divorced. John decided he would give his house to his parents and all other assets to his younger brother, who he loves unconditionally.

In an unfortunate accident, John passes away before putting a Will in place. In this situation, depending on the state laws, all his assets will go to his wife, with whom he doesn't share a good relationship.

  • In this case, there wouldn't be any regard to what type of relationship John and his wife had and whether they were happy or not.
  • His parents and brother won't have any proof for their claim, and they might have to spend a long time in the court's probate process.
  • The probate process would again be expensive and would cost his family a lot of money.

That's more than 2/3rd of the entire US population!
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Why are the laws this way?

In legal terms, if you pass away without a Will, it would be called dying "intestate."

Intestacy laws vary from state to state. These laws were drafted decades ago based on how they believed people would like their assets to be passed down the line. However, many families today are complex, with re-marriages & mixed families being and unique family dynamics. 

Even if you have a simple situation, there is no avoiding the tedious and expensive process of the local probate court that follows.

Probate - What does that mean?

In simple terms, the court's probate is the legal process that the court follows in deciding the distribution of your estate and assets after you have passed away. Your family would have to follow go through with this regardless of whether you have a Last Will or not.

  • The probate process is extremely time-consuming, mentally draining, and costly when a last will and testament are not present. 
  • It would start with the court appointing an Executor or Administrator for you who will be responsible for distributing your assets after the court's final decision is made. 
  • Usually, this person would be your spouse or an adult child. 
  • If no one is capable of taking up this role, the judge will assign a public trustee to do the job.

That's quite a generous gift to people you don't know or care about

Who inherits your assets?

Usually, your assets would be frozen until the court has decided on how to distribute them. As you saw in the example above, the court's final decision may not always be in your or your family's best interest.

  • Assets that have nominees, such as bank accounts & investments, can avoid the probate process and go to the person who is the nominee. 
  • However, if nominees are not specified, the court will decide how they would get distributed. 

Hence, it is always advisable to leave a Will behind to avoid these complications.

Let's consider the best-case scenario where your family members go through the entire probate process, and your assets are evenly distributed amongst your legal heirs. Even then, a significant amount of money from your estate will be spent on probate fees, and the remaining will go to your loved ones. It's a broad range; the Filing Fees would cost $50 to $1200; the Executor and Bond Fees 3-5% of the estate value; attorney fees would be $1500 to $3000 or up to 3% of the estate value.

That's quite a generous gift to people you don't know or care about

Who will take care of your kids?

Usually, your spouse or the surviving parent would get custody of your kids. However, in many cases, he/ she has also passed away or is incapable of providing for them. In this situation, the court will ask your family members to volunteer as guardians and decide based on who they think is the best fit.

The problem is that the judge does not know the details of your family dynamics. The decision made may affect the lives of your children in a negative way. 

On the other hand, if nobody volunteers, the state will take custody of the kids, and they'll enter the foster care system.

Dying Without a Will – A House of Cards

You've worked very hard to get to where you are today, and now it's your responsibility to protect it. Blood, sweat, and tears must have been spent building your assets. Don't let the courts decide who gets to inherit it all. You must have heard the saying, "the law is blind."

Your loved ones would already be in grief. They'd want to remember the happy moments you shared with them. Still, instead, they'd now have to start dealing with complicated legal affairs, trying to figure things out without knowing what you would've actually wanted.

Treat the Will as the voice of your soul when you're gone. It is a way to communicate even when you're no longer around. That is what makes it such a powerful document. You would have control over who gets what and ensure that your estate does not fall into the wrong hands. That is why you shouldn't waste any time and create an online last will now.

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Frequently Asked Questions

Can I write down my wishes and consider them a legal will?

Several states do not allow a self-written will unless you've followed the requirements. It would always be better to create a legal will by following all your state rules.

What would it cost me to make a will?

Depending on your location and estate, the cost varies between $500 to $1000 if you hire a lawyer. However, you can use the TrulyWill platform to create a legal and valid will at a fraction of this price.

Can I leave or donate my estate to an organization or charity?

You can leave all your assets to a charity organization. The court would follow your wishes and provide the organization with everything. However, consult an attorney to avoid any problems.

Can I decide who would look after my minor children in my will?

Yes, you should name a person as the guardian of your children in your will. It would help avoid any hassles, and they could look after your kids after you pass away.

What would happen if someone passes away without a will?

The state's intestacy laws will be followed if someone dies without a will. The interested parties, like the spouse or children, would have to go through a probate process to get their share in the estate.
Jennifer Mcgee
Parent to five young children. Estate Planning, Probate, and Family Law Attorney. Volunteer with Victim’s Advocates in the local sheriff's department...
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Jennifer Mcgree
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