Most adults in the US have not made a will or done any planning for the inevitable. Caring.com recently did a study and found that only 4 in 10 American adults have a will or living trust. If you have not made end-of-life plans, here is your wake-up call. There are many reasons you do not want to take the chance of dying without a will. Let’s look at why it’s essential to have a will and what can happen if you do not.
Probate Court
If you have no will, your estate will end up in probate court. The judge will appoint a personal representative to make an inventory of what you own and then pay any debts you have. At that point, the court rules on who receives which of your assets.
Probate can be a long and drawn-out process depending on your relatives and creditors who make claims on your estate. It can also be expensive for your estate, which means less inheritance for your heirs.
Loss of Privacy
Probate is a public process letting anyone curious know about your estate and file a claim. When the personal representative does an inventory of your assets, they discover everything you own. Your estate inventory is a public record. There is no privacy for surviving family.
Intestate Laws
Dying without a will is called dying “Intestate.” This term means that the court has to follow intestate laws in NC to determine who will inherit your assets. Intestate laws may not leave your assets to those whom you would choose.
For example, your spouse only receives all of the property some of the time. If you are married with a child, your spouse receives half of the real property. If you have two or more children, your spouse only receives one-third undivided interest in the real property. If you have parents living, they split the real property with your spouse 50/50. (2)
Your spouse could stand to lose quite a bit if you do not make a plan before you die.
Assets that Pass On without a Will
Without writing a will, you have no say about what will happen to your assets unless they fall into specific categories that you have designated.
- If you own a joint bank account with the “right o” survivorship,” the en”ire account automatically is inherited by the joint owner. It does not pass through probate court to determine the heir.
- Life Insurance Policies automatically go to the designated beneficiary
- Retirement Accounts automatically go to a designated beneficiary. If you have a will and it contradicts your retirement account beneficiary designations, the account designations determine the heir.
- Real Property that you own with someone else jointly automatically goes to the joint owner if you own as “joint” tenants” or “tenancy by the entirety”
Guardianship
If you die without a will in North Carolina and have minor children, the court decides who will care for your children. There are many scenarios where you would regret not having your say.
For example, if you have a sister who has always wanted kids but has a substance abuse problem, she could convince the court that she is the best choice for the guardian of your children. Family members may fight over who gets to have the children to receive the survivor or other state benefits. If someone wants benefits but doesn’t want to care for your children, do you want them to have your children?
Only you can decide to have a say about where your children end up if you die.
Be a Peacemaker
It is common for family members to end up fighting over your children or your assets in court. Making a will is a gift to your family and friends so that there is no need for argument or strife about what you would have wanted. A will carefully lays out your last wishes so that your memory can be honored.
Seek Help
If you are unsure how to start a plan for the end of life, let us help you with that. At Vail Gardner Law, we specialize in estate planning, including wills, medical power of attorney, durable power of attorney, trusts, and digital asset estate planning. We know the laws surrounding taxes, probate, intestacy, inheritance, and more and have the experience you need on your side to make the best decisions for your future and that of your family.