Even though you may not realize it, you already have an estate, and you already have an estate plan. If you take no estate planning actions at all, never talk to an estate planning lawyer, or never create any type of document, you still leave behind property after you die that has to be transferred to new owners. You also leave behind choices that have to be made, problems that have to be dealt with, and many other issues that will probably fall to your family to take care of.
In short, your choice to not create a personal estate plan is your choice to allow the estate plan that already exists to make your choices for you. Here’s what will happen.
Your State and Your Estate
It’s very common to die without an estate plan. In fact, it’s so common that every state in the country has lengthy and detailed laws that address exactly what happens when people die without an estate plan. If they didn’t have these laws it would fall to courts to have to wade through all of the details of a person’s life after they died in order to determine what that person would’ve wanted.
But that’s not what courts do. If you die without an estate plan, all the court—through the personal representative assigned to your case—has to do is look at the laws that are already in place to determine what happens to your estate. In short, these laws, called laws of intestacy, predetermine who inherits your property. Regardless of what you would’ve wanted, regardless of what you told other people while you were alive, if you don’t create an estate plan your estate will be distributed in accordance with state laws that make your choices for you.
Your Choices
Most of us go through our daily lives assuming we can make our own decisions. We don’t need others to help us, and even if we do, we determine if we want to listen to their advice.
But this isn’t always true. If you are injured, ill, or otherwise unable to make your own decisions, someone will have to make those important decisions for you.
If you don’t have an estate plan, it once again falls to your state to determine what those decisions are. Unlike dying intestate, becoming incapacitated and not having an estate plan that names someone who will step in for you means that a court will have to take on this role. The court will get involved, hold a hearing, and determine who should have the legal authority to make decisions on your behalf. And because you are incapacitated, you will have no say in its decision.
In short, you have an estate plan right now even if you don’t know it. Unfortunately, the plan provided by state laws may not be something you want or approve of, but until you make a plan yourself, it’s all you get.
Michael Robinson, Estate Planning Attorney
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