There are laws in every state called intestacy statutes or intestate succession laws. Intestate means there was no testament or valid will. If the person had a valid will then it would mean they were testate.
Every state has a series of laws that would govern what would happen to the person’s possessions if they died intestate. For example, in the state of Utah, the intestacy code states that if the person was married and it was their first marriage, then everything they had would have to go to their spouse, when they died.
If it was their second marriage and there were children from the first marriage, then the children would be protected. The new wife would only get up to $75,000 and the rest would go to the children.
This would basically be the default plan, although there are also other provisions for someone who was not married or if they did not have children. In that case the intestacy code would usually state that everything would go to the deceased person’s parents. In case the person did not have parents, everything would go to the person’s uncles and aunts, and from there it would go down to other relatives like the children of the aunt or uncle, meaning the person’s cousins.
In case the person did not have cousins, since the intestacy code only goes so far that at some point, it would just give everything back to the State. The person and their family would not get it anymore.
This is basically the risk a person would run by not making preparations before they were gone. The government would already have a plan ready in the event a person did not have their own plan.
The truth is that people might not like the government’s plan, but they would be deceased. Therefore, they would really want to do this for other people such as family members or loved ones or perhaps even a charity.
In one particular case, the person is leaving everything to the ASPCA. He is an animal advocate and he has three dogs of his own. He will be leaving his entire state to the ASPCA because he does not have any children and he has no close relatives, so he would rather give everything to a good cause rather than to the government.
You Need To Take Into Account What Would Happen If You Were Mentally Incapacitated.
It would be really important to take incapacitation into account, so that if and when it happened, we would know how to implement the plan. For example, a couple came in with their adult son, and the father had been diagnosed with ALS. He was struggling and could not speak very well. He had made some mistakes financially and had written a few checks and done some things that he was not supposed to do. He had not been diagnosed until that point and the family did not know what was going on with him.
The mother asked me to give her a durable power of attorney so she could manage her husband’s account. She wanted to get him off of the accounts so he would not be able to make those mistakes anymore with the checking account.
I told her that would be fantastic and that I would love to do a durable power of attorney for her. However, we would not be able to do one because her husband was now incapacitated. A person would not be able to sign a legal document if they not have their wits about them, and if they did not know what they were doing.
The next process for that family would be to go to court and get a guardianship and a conservatorship for him, which would cost over five times more to do. It literally would have saved them a small fortune if they had simply done the power of attorney beforehand. Then they would not have to go to court and file this guardianship proceeding because they would have the power of attorney and would be able to do whatever they needed to.
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