A Last Will and Testament, commonly called a Will, is a basic part of most estate plans. Your Will takes effect when you pass away. It distributes property to your beneficiaries, names a person to administer your estate, and often includes other provisions as well. Even though everyone should have an estate plan, many people do not. So, what happens if you die without a Will?
In the discussion that follows, we explain in general terms what happens in an estate when there is no Will to determine distribution of a decedent’s property. Specific circumstances in an estate may affect application of the laws explained here.
Deceased individuals who do not leave a Will to address distribution of their estate are described as dying intestate. The Kansas probate code includes laws of intestate succession that determine the distribution of the estate of a decedent who has no Will. In other words, if you do not have a Will or other legal documents to provide for distribution of your property after death, Kansas law makes that determination for you.
The laws of intestate succession establish a priority order in which a decedent’s heirs are determined to inherit the property in the estate. In some cases, if the decedent has no heirs or the heirs cannot be determined, the assets in the estate “escheat” to the state.
Determining the priority order of heirs in an individual estate can be complicated, but the general rules are fairly easy to explain. Here is a brief summary.
If a decedent has a surviving spouse and no children or lineal descendants of deceased children (such as grandchildren and great grandchildren), the surviving spouse inherits everything. If there are both a surviving spouse and children, the surviving spouse and children divide the assets in the estate equally — the spouse receives half and the children get half. If the decedent had a child is deceased, that child’s lineal descendants inherit the child’s share.
Married individuals who make a Will or estate plan commonly leave the entire estate to the surviving spouse and count on the surviving spouse to take care of the children, rather than dividing the between the surviving spouse and children. As such, if a married person were to die without a Will, leaving a surviving spouse and children behind, the 50-50 division between the spouse and children under the laws of intestate succession is likely to be contrary to how the deceased spouse would have wanted property in the estate to be distributed. If you are married and have children, that’s one of the primary reasons why you should have a Will. (There are other compelling reasons to have an estate plan in that situation as well.)
If an unmarried person passes away, the decedent’s children (or lineal descendants of a deceased child) inherit the entire estate. If the decedent has no surviving children or lineal descendants of deceased children, the decedent’s parents inherit the whole estate. If the parents are not living (and there are no children or lineal descendants of deceased children), the decedent’s siblings inherit the entire estate.
The intestate succession laws provide a priority order for estate distribution in situations not covered by the preceding summary. In some circumstances, a decedent’s family situation may complicate ascertaining the distribution under the intestate succession laws.
Solely-owned property of a decedent that passes to heirs under the Kansas laws of intestate succession generally is subject to probate, the court-supervised process for administering an estate. To complete the process, someone (usually a family member) applies to the court for appointment as the personal representative of the estate. The personal representative then handles probate of the estate.
A decedent’s assets may include property that is not subject to distribution under the laws of intestate succession or probate, however. Some types of assets pass to beneficiaries or joint owners automatically, rather than under the laws of intestate succession. Non-probate property includes:
These types of non-probate assets go directly to the beneficiary or joint owner, regardless of whether the decedent made a Will. They do not pass by intestate succession or go through probate.
Ensuring that your property is distributed according to your own wishes — rather than leaving the decision up to Kansas law — is just one of the critical reasons why you shouldn’t die without a Will. Naming an executor for your estate is also important. If you don’t make a Will, you won’t determine who becomes the personal representative of your estate. That person gathers and eventually distributes your property, after settling debts and expenses of your estate.
A Will also may include details about your final arrangements, designate guardians for minor children, provide for care of your pet after you pass away, and address other important matters that arise after your death. If you do not express your wishes in a Will, family members may disagree or argue over these important issues — and you will have no say in what eventually happens.
While Kansas law does not require you to have a lawyer assist with preparation and execution of your Will, you run a number of significant risks if you attempt to create one on your own. Your Will may not be valid in Kansas, or it may not accomplish what you think it does. The only way to be certain that your Will does what you intend is to consult with an experienced estate planning lawyer. Your attorney also will make sure that you have other necessary estate plan documents in place to protect yourself during your life and to protect your family after your death.
Our estate planning and probate law attorneys at Sloan Law Firm help clients with the full range of matters relating to estate planning and probate, including preparation of Wills and other important estate plan documents. We assist clients throughout Kansas and invite you to contact us by calling (785) 357-6311 or using our online contact form.