Having an estate plan brings many advantages: 

• Control of how your assets are distributed when you die  
• Peace of mind that your loved ones will be provided for 
• Control over health care and financial decisions if you become incapacitated 

Despite the benefits of having an estate plan, most Americans don’t have one. Lacking an estate plan can lead to unwanted results.  

“If you do not have a will [or estate plan], the state in which you reside and pass away has what’s called a statute of descent distribution that indicates who would receive the assets that you have at the time of your death,” says Ohio estate planning and probate attorney Jay E. Michael. 

Statutes of descent distribution are also called intestacy succession laws. They function as a backup if you don’t create a will. While it’s good there are default rules in place, “it may not be the way you would like them to go if you had prepared a will,” says Michael. 

In other words, when someone dies without a will, they don’t have a say in managing their estate. It’s left to their state’s intestacy laws. 

This article will explain intestacy and why it’s crucial to have an estate plan if you want to direct how things will go. 

What Is an Estate Plan? 

An estate plan consists of several legal documents that prepare for what happens when you die or become incapacitated. Core estate planning documents include: 

• A last will and testament. A will does several things:  
  • Lists your assets, including bank accounts, retirement accounts, life insurance policies, real estate, and other real property 
  • Makes beneficiary designations, or the people you want to receive your assets when you die 
  • Arranges for the guardianship and care of minor children  
  • Names an executor, a personal representative who upholds your interests and oversees the distribution of your estate in probate court 
  • Plans for payment of outstanding debts, bills, and estate taxes, if applicable 
• Living trust. Assets put in a trust avoid the probate process. As the “grantor,” you put assets in the trust and then appoint a successor trustee to take over ownership of the trust when you die. The trustee has a fiduciary duty to distribute the trust assets to your beneficiaries as specified in the trust. Read this article for more information about avoiding probate (including designated beneficiaries on accounts). 
• Health care directives and power of attorney. A health care directive (also called a living will) says what kinds of medical care you will or will not receive if you become incapable of making decisions at a later date. A power of attorney is an individual who is authorized to make healthcare decisions on your behalf if you become incapacitated.  

How Does the Probate Process Work if You Die Intestate? 

If someone dies without a will, they have “died intestate,” and their state’s intestacy laws kick in.  

Whether you make a will or not, your estate must go through probate. Probate is the court-administered process of distributing your assets. The difference is that with a will, probate will distribute your assets the way you want. Without a will, there is no guarantee that will happen. 

Every state has a law of intestate succession to govern probate if someone dies without a will. The laws of the state where you lived and died will govern your estate. 

Intestate succession laws vary by state but generally intend to distribute a person’s assets how they probably would have distributed them had they made a will.  

Intestacy succession laws start with the deceased person’s close relatives and work out from there to more distant relatives.  

If there is no close family member (for example, the person was unmarried or their spouse already died), the property goes to the next closest set of family members: 

• Surviving spouse 
• Children (biological and adopted) 
• Grandchildren  
• Surviving parents 
• Decedent’s siblings 
• Nieces and nephews 
• Aunts and uncles 

 A typical intestacy succession law “may say that everything goes to your spouse [when you die], but you may want something to go to your children or siblings. So, without a will, the statute of descent distribution comes into play and mandates where the assets would transfer,” says Michael.  

Should You Make a Will? 

Making a will and estate plan is not absolutely required. As discussed above, your state’s intestacy laws will apply if you die without a will.  

However, it’s wise to make an estate plan if you can.  

“I would just hope more people would do estate planning,” says Michael. “It saves the family money, hassles, and allows the family to clearly understand what the decedent’s intentions were at the time of their passing and where they want things to go.” 

Estate planning may feel unpleasant or like something far in the future. “I think they have to think about death,” says Michael. “I always joke with people who come in and say to me, ‘I need a will in case I die.’ I always tell them that there’s no ‘in case’—you are going to die. And I think no one wants to face that.” 

“But unfortunately, if you think about how stuff could end up with people you don’t want to have it, it shows the necessity of estate planning,” he says.  

“At some point in time, problems are going to arise, and they will need to be addressed.” For example, “where [many people] often need [wills] is as people with young kids—if something happens to you, where will your kid go? Who will raise your children?” 

Even though estate planning can be complicated, consulting with an estate planning lawyer is not. 

“You should always have an attorney involved,” says Michael. “Because if you draft [the will] yourself, we won’t know it’s wrong until you’re dead, and we can’t fix it then.” 

Questions for an Estate Planning Attorney 

An estate planning attorney can help you create a sound estate plan that ensures your assets are distributed how you want them to be. 

Many estate planning attorneys provide free consultations for potential clients. These meetings let you get legal advice and decide if the attorney meets your needs. 

To get the most out of a consultation, ask informed questions such as: 

• What are your attorney’s fees and billing options? 
• What is your entire range of legal services? 
• What happens if you die without a will? 
• What should I include in my will? 
• What other estate planning documents do I need? 
• Are there ways to avoid probate? 

Look for an estate planning attorney in the Super Lawyers directory for legal help.