Dying Intestate

The previously posted WILL NOT is a tongue in cheek but unfortunately accurate account of what may happen if you die intestate (without a valid will). The following is a more detailed discussion of some of the consequences of failing to legally document your post mortem intentions.

The most important question is who will inherit your property. Without a will, the intestacy laws of the state of residence will provide the answer. While such laws provide an exhaustive list of potential beneficiaries, the statutory recipients may not be your intended beneficiaries. The first beneficiaries in order of priority will be your spouse and children. Generally, the surviving spouse will receive a stated monetary amount (for example $30,000) plus a percentage of the residue (for example one third). Your children will receive the rest.

Our sixteenth President, Abraham Lincoln, from all accounts a fine lawyer, inexplicitly died without a will. Under the applicable intestacy statute, his wife Mary and his 2 sons split the residue of his modest estate. Considering there was no government pension at that time and Congress stopped his salary on the day he died, one wonders if Abe would have preferred Mary to live on his entire estate and not just the portion provided her under the intestacy statute.

Howard Hughes also passed away intestate (a purported will was found to be a forgery). Unlike Lincoln, Hughes died without a surviving spouse or children. Under the intestacy law, his $2.5 billion fortune was divided among his 22 cousins, his closest relatives. One wonders whether Hughes would have wanted such a distribution especially considering his lifetime philanthropy. The administration of Hughes’s estate dragged on for more than 20 years, another consequence that could have been avoided with a valid will.

Some other common consequences of dying intestate are as follows:

A will is the proper document to name a guardian for those under your care. Without naming your successor, you trust a Court to name the right person.

Similarly, without a will, you trust the state legislature to name the proper person to administer your estate.

Finally, without a properly drafted will, you are forfeiting any legal tax savings on behalf of your beneficiaries.

You will find that hiring a lawyer to prepare a will is almost always cost effective. You should be able to find a competent lawyer to prepare a simple will for under $400. If for some reason you choose not to use a lawyer, you should at least take advantage of the many do it your self will kits available on the web.

When You Don't Have a Will...

LAST WILL NOT AND TESTAMENT

I, JONATHAN MORRIS, of Pennsylvania (maybe Florida), questionably of sound mind declare this to be my Will Not. I do not know where my prior Will is or even what it says but nevertheless I do not revoke any prior Wills and Codicils if they are found.

FIRST: Specific Bequests.

I will not give my tangible personal property to anyone in particular even though my grandson has spent hundreds of hours of quality time with me restoring my '62 "Vette" and even though it was understood between us that the car would be his at my death.

I will not make provision for the fact that without the knowledge of the rest of my family, I lent my daughter the sum of one hundred thousand dollars ($100,000) to pay off her husband's gambling debts. I am sure she and her husband will tell the family that it was our understanding that her share of my estate would be reduced by the amount of the unpaid loan.

I do though specifically bequeath a significant share of my estate to the lawyers that will be required to resolve the disposition of my estate.

SECOND: Residue.

If my wife survives me by thirty days I will not give all of the residue of my estate to her nor will I give all of the residue of my estate to my children. Instead I authorize the elected officials of my state of residence at my death to determine who gets the residue of my estate as I believe such elected officials are more qualified than me to make this determination.

Any portion of my estate passing to a minor shall become his or her property at age eighteen regardless of whether such beneficiary is mature enough to manage such property.

To the extent the residue of my estate passes to my children I assume that my living children will agree to give an equal share to the children of my deceased son.

THIRD: Spendthrift Provision.

To the extent allowed by law, the creditors of anyone receiving any portion of my estate may receive such portion rather than the beneficiary.

FOURTH: Death Taxes.

I authorize any and all taxing authorities to claim the maximum amount of taxes from my estate before distribution to my loved ones or from my loved ones as the case may be.

FIFTH: Administrative Powers.

My Executor shall have none of the customary powers necessary to administer my estate, unless specifically conferred by law or approved by the Court.

SIXTH: Guardian.

I will not appoint anyone in particular as guardian of the person of each minor child of mine even though I had the legal authority to do so at my death. Instead I trust a judge whom I have never met to appoint the right person.

SEVENTH: Executor.

I appoint the state legislature to determine who should administer my estate. My Administrator shall be required to post security in every jurisdiction.


NOT Executed ________________, 2009.