The Issues with Dying Without a Will
April 21st marked the three-year anniversary of Prince’s death, and the battle over his estate continues. While there would have been disputes no matter how well Prince had prepared, these conflicts have only been exacerbated because he didn’t have a will. To be clear, Prince did not live in Wisconsin and his estate is not controlled by Wisconsin law. However, Prince’s well-known case can help illustrate the issues that arise when someone dies without a will.
Wills are important because they allow you to control what will happen to your property after your death. You can leave money to charity, leave specific amounts to family or friends, or even leave money to help take care of your pets. Without a will, you lose that control. Finally, and most importantly, if you have children, wills allow you to designate specific family members to take care of them. A court is not required to follow this request, but it can help guide the court when it makes that decision.
What happens if you, like Prince, die without a will? If the decedent lived in Wisconsin, a Wisconsin law, called intestacy, controls who receives your property. The law of intestacy is a backstop; it is intended to make sure that property goes to whom the decedent would most likely want to receive it. Because the state does not know your specific situation, they base it on family ties. The law of intestacy first looks to see if you have immediate family that can receive your property and then gradually works out to more distant family.
First, your property will go to your spouse. If you have children who are not also your spouse’s children, your children and your spouse will share the assets. This is designed to prevent an “evil stepmother” problem. If you are not married and have children, your children will receive your assets.
If you do not have a spouse or children, Wisconsin will look to your parents and siblings. Wisconsin will give your assets to your parents. If they predecease you, your assets will be divided equally among your siblings. If any of your siblings predecease you and have children, those children will receive their parent’s share. If you do not have any living parents or siblings, Wisconsin will move to your grandparents, followed by your aunts and uncles, cousins, and their children. Finally, if all of those people predecease you, the State of Wisconsin will receive your property and deposit it in the general school fund.
How would Wisconsin law distribute Prince’s property if he had lived in Wisconsin? When Prince died, he was not married and did not have any surviving children. Both of his parents predeceased him, and he had eight siblings: seven half-siblings and one full sibling. Two of his siblings, a half-sister and half-brother, predeceased him, and his half-brother had children. Because he was not survived by a wife, child, or parents, his property would be equally divided among his six living siblings and the children of his half-brother.
Even if you want your will to be the same as what happens under intestacy you should still have a will. Intestacy is the law, but laws can change. There is no guarantee that the law of intestacy when you die will be the same as it is now. More importantly, using intestacy is like cutting your hair with hedge shears. It may work, but it’s unwieldy and there are better ways to accomplish your goal. Intestacy is similar. The right relatives may inherit your property, but having a will allows you to fine tune your plan.
Finally, if you have never created a will, or want to update your will, meet with an attorney. Wills are complicated, and there are many minor technical requirements. If you don’t meet all of the requirements, your will is void. An attorney will know about those rules and ensure that your will reflects your wishes and will be followed by the courts. An attorney will also tell you whether a will is best for your situation. A will is just one tool when crafting an estate plan and other tools, like trusts, may work better in your situation. Whether you are creating your estate plan for the first time or modifying it due to changed circumstances, consult with the attorneys at Hale, Skemp, Hanson, Skemp and Sleik. Our experienced estate planners will ensure that your plan meets your needs and accomplishes your goals.