Absence of Will Could Spell Disaster for Survivors

Preparing a will and estate plan is a normal process for those who wish for their assets to be protected. Things such as a home, car, family heirlooms, art, stocks, or other items will pass to surviving loved ones intended by the deceased as instructed in a will. Dying without preparing a will, then, leaves the distribution of your assets outside of your control and will also take more time, money, and more of a stressful toll on your loved ones.

Mitch Adel, managing partner at Cooper Adel Vu in Centerberg, Sidney and Chillicothe; Steve Gariepy, partner and chair of the estate planning group at Hahn Loeser & Parks LLP in Cleveland; and Beatrice K. Sowald, partner at Sowald, Sowald, Anderson, Hawley & Johnson in Columbus, share about the difficulties faced when an individual dies without having properly prepared a will.

“The first thing is the family should confirm there is no will,” Gariepy said. “Ask around and just be doubly sure of that. After that, we have what is called intestacy laws, which cover dying without a will. They kick in and dictate who the beneficiaries and administrator of the estate are.”

Gariepy also noted that it is the administrator’s job is to determine the expenses, file the last tax forms, and collect all of the assets (which might have beneficiary designations).

Adel said the “weirder thing” happens when the deceased person has no spouse, children, or next of kin to perform these roles.

“You might be talking about a younger person, and then things by law go up to their parents,” he said. “If parents are deceased, it goes to their siblings. If the siblings are deceased, it’s their cousins and so on. It’s like a laundry list.”

Dying without a will can greatly affect the family and loved ones that have been left behind.

Sowald stated, “One of the biggest negatives of that situation is that it costs money to transfer assets should you die without a will. And you can’t exactly choose who gets what. I can’t think of any positives if someone dies without one, besides if there are disputes within the family and they don’t want to choose who gets what and leaving it up to probate.”

Adel also noted, “Probate costs are higher, and it’s all public record and there is a significant time delay. The state is trying to give creditors time to get their bills in. By avoiding probate, you avoid all of that. There are also people in the law that you might not want to have a hand on your assets. You lose all of the flexibility within being able to distribute things without proper planning.”

For families facing this situation, it can take a surprisingly long amount of time for everything to get situated.

“At the outset, it is going to take a bit more time to learn who the beneficiaries will be,” Gariepy explained. “When you have a will, you open it up and everything is in black and white. If you don’t have a will, there are those default rules. What else to expect is that it will be a bit more costly because now you have to go through probate. There is going to be some confusion, complexity, and cost. It’s a bit more involved too since a will can really streamline the process.”

Sowald added, “A lot of people will come to me and explain they don’t know what they have because it was never discussed. Just be aware that if there is a need for the property to be transferred, someone is going to have to go and get a court order to get those items. So, many people struggle to know where to even start. Also, be aware that you might also have other people making claims on assets in the event there is no will.”

The best way to begin the estate planning process and the process of creating the will that meets your needs is to contact an estate planning attorney who can help guide you in the right direction.

“We can help by creating a strategy in advance because fully disclosing everything to everyone is going to be better for efficiency purposes,” Adel said. “This is, unfortunately, a very emotional time and if you can rely on someone like me, you can let the emotional part be dealt with. The parts that will make the family uncomfortable, let that be handled by us.”

For help creating your will and estate plan or in areas of Elder Law, contact us at Wilson and Wilson Estate Planning and Elder Law, LLC at 708 482 7090 for our main office in LaGrange, Illinois or at 847 656 8958 for our Northbrook, Illinois office.