Wills vs. Intestate Disposition

Video

Good morning, folks. It’s Andy Stautz at Stautz Law. Today we’re talking about estate planning. And the question is, do you need a will when the intestate rules would accomplish the same disposition? 

Wills vs. Intestacy in General

So let’s break that down a little. Intestacy is when you don’t have a will. The intestate rules, then, control who gets your property. And the intestate rules are, as we’ve said before, the Indiana State Legislature’s best guess at what people want to happen. So you know. Yeah, your property goes to your relatives, to your spouse, if you have one; to your children, if you have any. If you don’t have children or a spouse, your grandchildren. If you don’t have any descendants or spouse, you know your parents, then your nieces and nephews. Kind of increasingly distant relatives.  

Obviously a will if you have one overrides the intestacy rules, so you can leave, you can use a will to leave it to anyone, not just your family.  

What if Intestate Disposition is Fine?

The situation comes up sometimes though, where someone wants … someone has, you know, just a spouse. No parents, no kids. Do they need a will to leave everything to their spouse? because the intestate rules would leave everything to their spouse anyway? 

Or, you know, they just have adult children, no spouse, no parents. Everything will go to their adult children. Do they need a will to to do that?  

Considerations Before Planning Not to Plan

This is one of those areas where the actual solution is legal advice. It depends on your situation.  

1. Possible Family Changes

But there are some things to think about just generally and one would be: how sure are you that your family situation is going to stay the same as the intestate situation? So you know, if you got remarried, if you had another kid… If you forgot about someone … you adopted a stepchild and don’t remember that you did it, and now you know… Whatever.  

So with intestacy, you’re just kind of at the mercy of what the rules are and what the family is when you happen to die. With the will, you lock it down. You say, OK, this is who it’s going to. So that’s worth something.  

2. Powers to make administration easier

Also your will can give powers to your personal representative to make administration easier. And that might be worth it to you. You know, we’ve talked before about how you get unsupervised administration and why you might want to do that. Well, you can do it if you’ve got the consent of all intestate heirs. But you know, if there are many heirs or if they don’t quite get along, you know, the will can say “I authorize my personal representative to do it unsupervised.” So you just kind of remove that question, remove that obstacle and that saves you money on the back end and it saves your heirs money. I suppose you know, maybe you don’t care at that point, but it makes things easier.  

3. Forestalling conflict and uncertainty

And then the third thing is closely related to that… in addition to locking down your disposition, giving your personal representatives powers to make his or her life easier, you also reduce the risk of conflict. With intestacy, you don’t know who’s going to come out of the woodwork. There’s always a little bit of doubt, you know. Did we find everybody? And you know. OK, what are the shares? how are we going to administer it?  

With a will you say “Nope. Here’s the universe. These are my beneficiaries” and you kind of give more certainty to the whole administration. There’s no wondering. “Oh, is there a will out there we forgot? Is there an heir out there we forgot? Is someone going to come up later and challenge this? You know, having the will, even if the disposition is the same, kind of forestalls all that conflict and says. Nope. Here it is. 

So that’s kind of three reasons. I’ve just given you for why you might still want a will. Even if you think intestacy is going to work correctly for you. … It’s probably worth doing. Again. You know, specific to your situation, I can’t give you legal advice in a general talk like this.  

But these are the kinds of things I talk about with my clients at our planning meetings and usually the planning pays for itself. If you, you know, if you forestall even a small fight or you make things a little easier on your personal representative. It’s going to save in the long run. 

I hope that’s given you some idea and what’s helpful. You can call me or book your appointment online and I look forward to talking to you about this or any other estate planning topic. Thanks and bye for now.