We’ve talked about putting together an estate plan for years now, but the kids keep changing their minds, we keep putting it off, something else always comes up, etc.
Mostly, we just don’t know where to begin on the process and don’t know what we don’t know. What are the laws if one of us or both of us die without having a will? – No Plan
– No Plan
Dear No Plan:
Well, that’s a very simple question with a very complicated answer based on you and your husband and your children and whether or not all the children you have are from this marriage.
If one of you dies without children or without any living parents, then your spouse receives your estate. If you die and have a parent but no children, then your spouse receives the first $300,000 and three-fourths of the remainder and your parents receive the remainder.
If you have children with your spouse and he dies, and he has no other children from a previous marriage, then you receive all. If he has previous children, then you receive the first $150,000 and one-half of everything else and his children inherit everything else.
That covers the first page of intestacy laws and it continues on for pages thereafter regarding if you have prior children, if you have no children but he has children, and on and on.
In addition to this, you have not appointed a personal representative by not having a will. The personal representative is your legal representative in all affairs after your death – the person who will have to sign for all of your legal debts, act in your stead in any affairs of the estate such as FHA, grain contracts, sales owed or sales to be paid, etc. You will need to hire an attorney to petition the court to be appointed personal representative so you can financially handle the estate.
If someone else should submit a petition to the court, it’s solely up to the court as to who they will decide upon. You might not get to be the PR of your spouse’s estate!
Let me tell you from first-hand experience, having someone die without a will is not where anyone wants to be. Everything is delayed, everything is cross-checked by a probate judge and you’ll likely be paying for legal representation throughout this long, drawn-out affair – some lasting years.
I’ve heard the old adage ‘We didn’t know where to start’ a lot over almost forty years of planning. I can tell you where to start. Find your phone, call a reputable estate planner, set an appointment and on that day, walk to your car, drive to the estate planner’s office and tell them you don’t know a thing about what you want to do.
If you’ve come to a good estate planner, that’s the last of your problem of ‘I don’t know what I want to do’.
A good estate planner will then talk to you about you, and your life and your children. They’ll talk to you about your farm and ranch business and how it came to be. They’ll ask about how your business and family has changed over the years and which children, if any, are a part of your business. If so, for how long, what educations do they have and do they have children.
After you’ve had a nice chat for about an hour and a half – one the estate planner hasn’t charged for – they should be able to give you some basic ideas about where to head in your specific estate plan by asking you a series of questions.
Now, you’re in the process and moving finally. Doesn’t that feel good? The estate planner should send you a written report of where you are at and what things you need to talk about before your next meeting. You meet as many times as necessary to feel right about your plan and when your happy, take it to an attorney to have your ideas put into a legal format.
Now you know what you didn’t know before.