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Dying without a will (or intestate) leaves the division and distribution of one’s assets up to the state.
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msnbc.com contributor
updated 3/23/2006 7:20:22 AM ET 2006-03-23T12:20:22

No one wants to acknowledge their own mortality, especially in writing.  This is probably why avoiding doing so is the favored estate plan for many Americans. It has been estimated that 70 percent of all adults — many of whom are parents of minor children — do not have wills. Even among the affluent a dread of estate planning had 37 percent going without according to a 2004 survey conducted for PNC Financial Services Group.

Dying without a will (or intestate) leaves the division and distribution of one’s assets up to the state. “Basically, if you don’t write a will, the state will write one for you,” explains Thomas J. Dwyer, a Chicago attorney. “However, the way the state does it probably wouldn’t be how most of us would like it done,” he says. 

Although each state has slightly different laws for doing this, they tend to favor distribution to biological children and current spouses.  In their absence, parents and siblings typically figure into the plan. Given the right circumstances, the state may even declare itself the rightful heir.

Legally unrecognized relationships, like those between life companions, roommates or those co-habiting could leave a surviving "roomie" literally and figuratively locked out and having to prove ownership of personal belongings depending on whose name was on a deed or lease. 

For those leaving behind underage children, the state decides who will be given guardianship irrespective of known preferences or promises. Any financial assets held on the children’s behalf will be subject to annual audits, fees and quite promptly and fully distributed directly to those children upon reaching the age of majority — 18 years old in most states.

Blended families can face an assortment of unintended consequences, with some or all assets passing to first-marriage children and bypassing second spouses and stepchildren altogether. In some cases, family heirlooms may be put up for sale with family members having to buy them back from the state.

Letting the state decide may save the decedent a few hours of thinking through their exit plan, but it can be exceedingly costly and aggravating to those left behind. Ultimately leaving a will is a much better legacy than dying without one.

Drafting a will does not have to be a big production. Basic, legally enforceable wills may be written rather quickly and economically using online software programs. They can later be fine-tuned, expanded or amended as personal situations and assets change. Web sites like Nolo.com, and LegalZoom.com are among those that can help get the deed done. With LegalZoom in particular, legal experts will actually review all documents before allowing them to be endorsed into legally binding existence.

Having any self-prepared documents reviewed before endorsing is something Dwyer strongly encourages since different states have different requirements.  Also, there is always a chance that the software instructions may be misunderstood, leading to the creation of inappropriate, yet legally-binding vehicles.

“Once a will is signed it is a legal contract. Changing its structure is much more complicated,” says Elizabeth Arnold, an attorney and coach for families involved in estate planning.  She is also the author of Creating the Good Will, a book that guides individuals and their families through the emotional minefield that often accompanies estate planning and its aftermath.

As Arnold sees it, while having a basic will is better than having none, rushing the process wastes a golden opportunity for creating a legacy of goodwill within the family.

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“One of the reasons so many people avoid writing a will is that it would force them to look at their relationships and make tough decisions,” says Arnold.  As hard as that is, when done in a vacuum — without further explanation — or purposely left vague as to the division of property, it can lead to as much family discord as the lack of a will would.  “People think wills are about tax-saving strategies and money, but ultimately they are about so much more,” says Arnold.

What they are really about is why a niece received Grandmother’s engagement ring instead of a twice-married daughter, or why a son was named executor instead of one of his older sisters.  They are about the infighting that results when all the little things left jointly need to be divided in the absence of specific instructions — when everyone wants the autographed World Series ball, and no one wants custody of the dog.

“They say that siblings are five times more likely to fight about family items than about money,” says Arnold.  Such fights often lead to wounds and resentments that never heal.

This is why Arnold advocates writing a "good" will. It addresses such "why’s" either through letters of explanation included within the will or through discussions with those named in the will ahead of time. It can head off potential feuds, ill feelings regarding misunderstood intentions and lead to the healing of old rivalries once and for all.

Arnold advises writing the good will regardless of the size of the estate. It is a process that benefits even for those whose legacy will rely more on memories and cherished mementos than financial assets.

“Ultimately writing a will,” concludes Dwyer, “is not such a big thing.  It is a basic thing.”  If written thoughtfully, it will ensure being remembered with fondness, not for leaving grieving loved ones with a legal and costly mess.

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