What Happens with No Planning?

Whether because of procrastination, lack of understanding or by choice, a majority of Americans have no written plan as to how their property is to be distributed upon their death. When a person dies without a will, or dies "intestate" as the law calls it, the property of the deceased person is distributed according to the Indiana law of "Intestate Succession." In other words, if you don't make a will, you don't have any say about how your property will be distributed. The State of Indiana provides a will for you. Unfortunately, the plan provided by Indiana law may have little to do with your particular wishes or what is in the best interests of your family. The following outline shows who receives your property under Indiana law when you do not have a will:

Married Person:
If there is at least one child or any children of a deceased child:
Spouse - 50%
Child and children of deceased child - 50%

If no children or grandchildren, but with parent(s):
Spouse - 75%
Parent(s) - 25%

If no surviving children, grandchildren or parents:
Spouse - 100%

Different distributions apply to second or subsequent spouses when at least one child (or grandchild) from prior marriage survives:
Spouse - 50% of personal property & 25% of the value of real estate
The rest to children (or grandchildren) of prior marriage

Unmarried Person:
If there is at least one child or any children of a deceased child:
Children and/or children of deceased child - 100%

If there are no children and no children of a deceased child:
Parents, brothers, sisters and children of deceased 
   brothers and sisters (nieces/nephews) - 100%

If there are no parents, brothers or sisters:
Children of deceased brothers and sisters - 100%

If there are no children of deceased brothers and sisters:
Grandparents - 100%

If no grandparents:
Brothers and sisters of parents and children of deceased brothers and sisters of parents - 100%

If none of the above:
State of Indiana - 100%

For example, a common desire for couples with children is to leave all property to their spouse with the understanding that the spouse will provide for their children. The children are only named as secondary or "backup" beneficiaries should both parents die. Under Indiana law, however, if a husband (or a wife) dies without a will, leaving two or more minor children, the wife would take only one-half of the estate and the children would split the remaining one-half of the estate. The widow or other suitable person would then need to be appointed guardian of the children's finances (estate) by the court and is required to give the court a surety bond and to make regular accountings to the court of the children's finances. When each child reaches age 18, his or her share of the guardianship funds would be required to be made fully available to the child, regardless of his or her maturity level. Such proceedings could cost a lot of money and could create legal problems that might have been avoided had the husband made a will or created a revocable trust.

If you would like more information on the benefits and costs of making a will or a trust plan, please contact our office.  At Kent A. Jeffirs, Attorney at Law, we offer a FREE half hour consultation to discuss what type of estate plan is right for your particular situation. You can also call or e-mail us to request this FREE half hour consultation.  After reviewing information at your initial consultation concerning the nature, title and value of your assets and liabilities, and following discussions with you concerning your goals for the use of your property during lifetime and following death, we will provide you with an estimate of legal and other expenses involved with the drafting and implementation of a will or living trust plan.  The drafting of a will or living trust, like most other legal documents, requires professional judgment if the best results are to be ensured.  We can help you avoid the pitfalls and help you choose the legal instruments and plan best suited for your situation.