No Will? You May Want to Think Again

In this article, Don James, CPA, of DJ Tax Solutions explains what can happen when someone dies without a valid will. Many people assume their assets will automatically go to their spouse or children, but state intestacy laws often determine who inherits your estate, who manages your affairs, and, in some cases, who may care for your minor children.

Creating a will is one of the simplest and most important steps you can take to protect your family and ensure your wishes are honored.

The Will the State Writes for You

A person who fails to execute a will effectively allows the state to do it for him. If some state laws were put in the form of a will, it would look something like the one below: 

A person who fails to execute a will effectively allows the state to do it for him. If some state laws were put in the form of a will, it would look something like the one below.

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I, _______________________________, hereby publish and declare this to be my Last Will and Testament.

Article I

My spouse shall have one-third of my property, and my children shall have the other two-thirds, even if my children are minors or even infants at the time of my death.

Article II

The Probate Court may appoint anyone of its own choosing to be my personal representative and probe into my personal affairs.

Article III

If my spouse survives me, I appoint her (him) as guardian of my minor children. However, I require that she (he) give periodic accountings to the Probate Court of the expenditures on behalf of my children.

• • I also require that my spouse obtain a bond to assure that she (he) carries out the guardianship duties satisfactorily.
  • When my children reach the legal age of majority, they may demand a full accounting from my spouse of all funds expended on their behalf.
  • In the event my spouse does not survive me, the Probate Court may select anyone it wishes to be the guardian of my minor children.

Article IV

If my surviving spouse remarries, her second husband (his second wife) shall be entitled to at least one-third of my surviving spouse’s property, including that which I left to her (him). The second spouse shall not be obligated to use any of my original property or my spouse’s property to support my children.

Article V

While there are steps I could take to reduce my income and death taxes, I have consciously decided to pay as much tax as possible to the state and federal governments, rather than preserve such funds for the benefit of my family.

Article VI

If all of my family predeceases me, I cheerfully leave all of my property to the State of __________________________.

In witness whereof, I have executed this, my Last Will and Testament, this ____ day of ____________, 20____.

________________________________

Intestate

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Why This Matters

This “will simile” is sometimes used to illustrate the necessity of having a will. Some couples assume that all their assets will automatically pass to the surviving spouse upon their death. That is not generally the case under state intestacy law – though many of a couple’s significant assets do pass via title or beneficiary designation regardless of whether a will exists.

For example, if the title to your home is held as “joint tenants with rights of survivorship,” the home will pass to the surviving spouse with or without a will. Similarly, life insurance policies, IRAs, 401(k)s, and other retirement accounts pass via beneficiary designations, with or without a will.

Why Having a Will Still Matters

One of the most important reasons for a couple with minor children to have a will is to name their choice of guardian for their children in the event both parents die in a common accident. The court has final authority to appoint the guardian, but the testator’s nomination is given high regard.

A will also allows you to bequest specific items of personal property – jewelry, art, family heirlooms – to specific people. This specific bequest is stated in your will and provides that if that particular beneficiary is not living, the property passes to an alternate beneficiary or as a general gift to a group of beneficiaries.

Without a will, none of this happens by your choice. It happens by the state’s default rules – which rarely match what you would have wanted.

Protect Your Family with a Thoughtful Estate Plan

Creating a will is one of the most important gifts you can leave your family. It provides clarity, helps avoid unnecessary complications, and gives you the opportunity to make decisions based on your own values and priorities.

At DJ Tax Solutions, we help individuals and families think strategically about estate planning, wealth preservation, and legacy planning as part of a comprehensive financial strategy. Contact DJ Tax Solutions to schedule an introductory consultation and begin building an estate plan that protects the people you care about most.