Don’t Have a Will?
What Happens If I Don’t Have a Will?
The first thing you learn in law school is “the answer to every question is: ‘it depends.’” I’ve found this to be true, more often than not. So, what happens if you don’t have a will? It depends on a lot of factors, including your family situation and where you reside.
Not everybody needs an estate plan, including a Last Will and Testament (a “Will”), but everybody should strongly consider preparing one. As an attorney licensed to practice law in the states of North Dakota and Minnesota, I am often approached by clients wondering how to proceed with their parent’s estate if they did not leave a Will. A person who dies without a Will is said to have died “intestate.” The good news is, both states have default provisions to deal with such a situation. The bad news is that it can get complicated and might result in a situation that is not necessarily what the decedent may have chosen had they taken the time to prepare their own Will.
Among the benefits to preparing a Will is the ability to nominate a preferred person to act as the personal representative to administer the estate. A Will also provides the testator (the person making the Will) with some degree of control over who will receive their assets when they die.
If you die a resident of North Dakota or Minnesota with no Will, there is a statutory list of people who have priority to act as the personal representative of your estate. The person with the highest priority is, perhaps unsurprisingly, a surviving spouse, following by the heirs of the decedent, all of whom have an equal priority to be appointed. This can create a problem if there are multiple people at the same level of priority that do not get along or have differing ideas as to how the estate should be administered, which can, in turn, become a dispute that will need to be settled through litigation.
Who inherits from a person without a will? Simply put, the heirs are the people that will inherit from a decedent in the absence of a Will. What is less simple, though, is trying to determine who gets which assets. In a traditional “nuclear family,” where the decedent is married and all of the children are products of that marriage, the surviving spouse usually inherits everything. If there is no surviving spouse, and all of the children outlive their parents, the children will split everything equally.
For every other situation, things start to get complicated.
If a decedent passed without leaving any surviving spouse or children, the courts will essentially look to the decedent’s family tree to see if they can trace it to the nearest surviving “class” of heirs. As an example, if a decedent passes without leaving a surviving spouse, the courts will follow the family tree down to see if there are any children, grandchildren, great-grandchildren, etc. If none are found, the court will move up one branch of the family tree to see if there are any surviving parents. This process will begin again from the parents’ branch to see if there are any surviving siblings, then nieces and nephews, and so on. If the court still cannot find any surviving heirs, it moves up one more branch to look for grandparents, then aunts and uncles, then cousins, and so on down the line.
The vast majority of estates are resolved by this stage. If not, the next step will be determined by which state’s laws apply. In North Dakota, the court will look for descendants of a predeceased spouse. In Minnesota, the court will simply continue searching for the nearest surviving relative. Under either case, if the court still cannot find anybody to inherit, the decedent’s assets become property of the state.
What about a blended family? This is where things may start to quickly go astray. Under Minnesota law, if either spouse came into the marriage with previous children, the surviving spouse gets the first $225,000, along with one-half of the remaining estate. The rest of the estate will then go to the other heirs, as determined above.
North Dakota’s laws are a bit different. A surviving spouse will get the first $225,000 of the decedent’s estate, plus one-half of the balance if all of the decedent’s children are also the children of the spouse but the surviving spouse has children of their own. If, on the other hand, the decedent has their own children, the surviving spouse will get only the first $150,000, plus one-half of the balance.
For many people in a blended marriage, this could mean that their children will be left with nothing in the absence of an estate plan.
So, should you have an estate plan? Probably. Everybody should at least consider having an estate plan prepared. As you can see, this topic can get fairly convoluted. If you are in a blended family, or if your family dynamic is “complicated,” it will be even more important to talk with an experienced estate planning attorney to make sure you have something in place to insure that your estate is properly administered. If you are interested in setting up an estate plane, or even if you just have questions about how this would work in practice, please consider scheduling an appointment for a consultation.
