“What will happen to my assets when I pass away?” This is the question that brings many clients into their attorney’s office for initial estate planning discussions. Typically, their estate planning attorney will ask questions to learn about their assets, family and wishes. From that information, the attorney will work to craft a plan that best achieves those goals. Many clients make that initial appointment intending only to create a Will, but soon learn that a comprehensive estate plan is about much more than the contents of a Last Will and Testament. In most cases, beneficiary designations, marital property agreements or trusts become important components for the plan. The purpose of this article is to examine what happens if that meeting never occurs and the individual passes without any estate planning done.
As a preliminary matter, it is important to note that most people have at least done some estate planning even if they have never written a Will or met with an attorney. Typically, this comes in the form of a beneficiary designation on financial accounts, life insurance or retirement assets like 401(k)s. Alternatively, some may own property in a form of title which creates rights of survivorship. While these choices may not have been a part of a comprehensive plan, they do represent decisions which have deviated from the “default.” This sort of uncoordinated and piece-meal planning can sometimes cause more harm than good, especially when beneficiary designations are not updated for many years or are not made consistent with other planning documents. For example, a decades old beneficiary designation on an account will control over a newly executed Will unless the designation is updated. For the purpose of this article’s examination of what happens without any estate planning, we assume these designations were left blank and assets are titled such that there are no survivorship rights.
For residents of the State of Wisconsin, the “default” is found in Wisconsin Statute Section 852.01. In a sense, this statute is the state legislature writing a Will for anyone who has not written their own. The distribution pattern written into this section attempts to grasp what most people would have selected in their Will had they written one, or in a beneficiary designation had they made one. As such, the more “traditional” your family structure is, the more likely the default will align with your actual desires as it is based on the “issue.” The term “issue” in this context of estate planning, refers to lineal descendants, typically children and grandchildren and will continue to refer to such throughout this article.
In the absence of any planning to the contrary, if you did not have any children with anyone other than your current spouse, everything will go to the spouse, if they survive you. However, if you have children from another relationship, then your surviving spouse or domestic partner will inherit one-half of your property other than your interest in marital property or property held as tenants in common with the survivor.
If there are issue, then they shall receive in equal shares any shares not inherited by the surviving spouse. If there is not a surviving spouse, then they shall receive the entire amount “per stirpes,” which is Latin for “by branch.” This means that your children each would receive an equal share, but if one of your children predeceased you, their share would instead pass to any children they had which remained alive, split by whatever number of grandchildren descended from that deceased child. If the deceased child left no issue of their own, that “branch” of the family tree has been extinguished, and the other branches assume their share.
If there is no surviving spouse or issue, then the assets pass to the deceased’s parents. If there are no surviving parents, then the shares pass equally to any siblings of the deceased, per stirpes. Here, per stirpes would again mean we would look down the family line of any predeceased siblings for a beneficiary. If no surviving beneficiaries are found at this point, then the assets pass to the grandparents per stirpes.
Any share that would go to a beneficiary under the age of 18 will be held in a custodial account for their benefit until they reach of the age of 18. This is because minor children are considered incapacitated under the law and cannot manage large sums of money on their own. When the child comes of age, whatever funds are left are turned over to their control.
Finally, if no heirs can be found as close to the deceased as any living descendant of the deceased grandparents, then the property “escheats,” or “goes to,” Wisconsin Statute § 852.01(3) to be added to the state’s school fund. Clients sometimes ask if their property will be taken by the state if they do not have a Will. This is usually what they are referring to and, as you can see, this will only happen if no family can be located out as far as the descendants of the grandparents.
In addition to the rules described above, there are a great number of exceptions and rules for special circumstances which are too numerous to discuss here. For example, someone who murders their spouse is effectively disinherited, and a parent who abandons their child can lose the rights to inherit from that child if they die. There are also rules for how domestic partners inherit from one another.
Those with children from multiple partners, who are in second or third marriages, who have the intent to treat their children differently, or want to provide for someone who is not legally their child, such as a stepchild, often find these default rules vary greatly from how they would want their assets divided. Unfortunately, the court will not hear arguments that the resulting distribution does not match what the deceased would have wanted. The only way to opt-out of the pattern established by the statute is to take affirmative steps during your lifetime.
Assets pass to the appropriate beneficiaries through probate, which is the court supervised process for distributing the assets of one’s estate upon their death and paying their final expenses. A common misconception is that a Will avoids the need for probate, but a Will merely provides alternate instructions for distribution of one’s assets in the probate process. If you have assets in multiple states, it may be necessary to have multiple probates. This is because Wisconsin courts have limited authority to dictate how property in other states transfers. Proper planning can avoid this expensive problem.
A Will also nominates a personal representative to oversee the probate process. In the absence of a nomination, the court will appoint someone to manage the probate process. Often, this is a surviving spouse or a relative who steps up to the responsibility and volunteers to take on the task. Unfortunately, the power the personal representative wields can sometimes attract those who are seeking to abuse the position for personal gain or to go on a power trip. In the absence of a clear direction by you, the court may not be able to tell the difference between these types of people.
Even if your intent matches the default distribution pattern, estate planning can still offer a number of benefits over dying intestate (without a Will). For example, certain types of estate planning can avoid the probate process entirely, saving time and money upon your death. Trust funds are commonly used to prevent beneficiaries under a certain age from gaining direct control of large sums of money. A trustee manages the funds and helps pay for expenses for the beneficiary until they reach the set age and get full rights to the property. Many prefer this option over the possibility that a grandchild would receive a sizeable inheritance upon turning 18, as statistically that money will probably be wasted and gone within a few years. Sometimes, when a beneficiary is known to be irresponsible with money and the problem does not seem likely to improve with age, trusts can hold onto the money for their entire lives.
Outside of what happens to your assets, dying without estate planning could affect who is given guardianship of your minor children. Typically, the Will is where a parent would nominate who would be charged with looking after their children were the parents to die while the children were still minors. In the absence of a nomination, the court system will decide who will take care of them. This likely will be a family member, but the court will have limited information about your child and your family dynamics. Nominating a guardian is often one of the most important reasons clients with minor children schedule an estate planning appointment.
This article only discusses what happens if you pass without an estate plan, but most estate plans will include power of attorney documents, which appoint trusted individuals to make decisions for you in the event you become incapacitated, but remain alive. These documents are critically important, and anyone over the age of 18 should have them in place. If you have questions about power of attorney, inheritance or wish to create an estate plan which distributes your assets on your terms, it may be time to speak with an attorney.