Surveys tell us that the vast majority of Americans understand the need for estate planning. Despite this, over half of all Americans do not have an estate plan in place. People offer a variety of explanations for their apparent procrastination, including the belief that they don’t need an estate plan yet and not have the time and/or money to devote to creating a plan. Sometimes, the best way to convince someone that they need to do something is to explain what happens if they don’t do it. With that in mind, the estate planning attorneys at Hedeker Law Ltd. explain why you don’t want to die and leave behind an intestate estate.
Testate vs. Intestate Estates
After your death, your estate will be required to go through the legal process known as probate. Although probate serves many functions, one of the primary functions is to identify, value, and eventually pass down the decedent’s estate assets. If you leave behind a valid Last Will and Testament at the time of your death, your estate will be referred to as a “testate” estate. If no Will is located, your estate will be considered an “intestate” estate. Whether the estate is a testate or an intestate estate will dictate, to a large extent, how the estate is handled during probate.
Disadvantages to an Intestate Estate
Leaving behind an intestate estate has numerous disadvantages which is why creating at least a basic estate plan is so important. Some of the most important of those disadvantages include:
- Left out beneficiaries – when you die intestate, the Illinois laws of intestate succession determine how your estate assets are distributed during the probate of your estate. Those laws look first to your closest surviving family members to distribute your estate, starting with a spouse and/or children. This often means that beneficiaries to whom you intended to leave gifts are left out. That favorite nephew to whom you promised your baseball card collection won’t get it. Likewise, the charity that you have given to faithfully over the course of your life will also receive nothing from your estate.
- Unintended beneficiaries – conversely, if the intestate succession laws dictate who receives your estate assets there may be some unintended – and unwanted – beneficiaries. For example, if you and your spouse have separated by the divorce has yet to be finalized, he or she will still inherit from your estate because you are still legally married. If you did not leave behind a spouse and/or children, the law will start looking farther out to parents and siblings. Your brother, who has a bad drug addiction, might get an unintended windfall that will be squandered in a matter of weeks.
- Important assets may be sold – when the intestate succession laws require an estate to be equally divided among beneficiaries, it may be necessary to sell estate assets to create the equal division. Family heirlooms or assets with great sentimental value might have to be sold and be lost forever.
- You don’t get to decide who oversees the probate of your estate – when you execute a Will, one of the most important decisions you make is who to appoint as the Executor of your estate because that person will be responsible for overseeing the probate of your estate. If you leave behind an intestate estate, any competent adult can volunteer to be your Personal Representative and oversee the probate process. The last person you would choose might end up in control of your estate assets.
- Lost opportunity to nominate a Guardian for minor children – the only official opportunity you will have to nominate a Guardian for your minor children, in case one is ever needed, is in your Will. Dying intestate leaves the decision of Guardian entirely up to a court with no input from you.
Contact Estate Planning Attorneys
For more information, please download our FREE estate planning worksheet. If you have additional questions or concerns regarding the reasons not to leave behind an intestate estate, contact the experienced Vernon Hills estate planning lawyers at Hedeker Law, Ltd. by calling (847) 913-5415 to schedule an appointment.
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