No will, no trust…what next?
Even if you have never signed a will or trust, you have an estate plan. Some of you may be asking, “How?”
The answer is the state has a “default estate plan” for those without their own.
Each state in the United States has an “Intestate Succession Plan” for those residents that die without having signed their own will or trust. Although the term and concept may seem daunting, it is merely the state legislature’s attempt to do what the legislature thinks its citizens would do if they had drafted and signed their own estate plan.
In Utah (as in many states), if you die without an estate plan, the law provides that your entire estate will be distributed to your spouse if he or she is alive unless you have children from a prior marriage. If you do not have a surviving spouse, the estate will be distributed to your children and if a child predeceases you, then to that child’s children.
If you have no surviving children or grandchildren (commonly called your “issue”), then your estate will be distributed to other relatives.
If you have a surviving spouse and children from a prior marriage, a certain amount is distributed to your surviving spouse and then one-half of the balance of your estate will be distributed to your surviving spouse and one-half to your children.
Although the state “default estate plan” attempts to represent what most people would want to do with their estate if they had done their own estate planning, it may not be what you want. There are many concerns about relying on the state’s “default estate plan.”
If you rely on the state’s “default estate plan,” your desires may not be met when you have children from a prior marriage. As previously stated, the state’s plan provides that one-half of your estate will go to children from a prior marriage and the other one-half to your surviving spouse.
Often, it may be desirable to allow the surviving spouse to have a lifetime interest in all or a part of your estate until his or her death and at that time the estate could be distributed to your children. This is commonly done through the use of a revocable or living trust that holds a personal residence in trust for the surviving spouse and then upon their death to the children or grandchildren of the first spouse.
Additionally, if you marry later in life, you may desire that all your assets be distributed to your children from a prior marriage because your surviving spouse has sufficient assets of his or her own. This must be accomplished through your own will or trust.
Although we all have a “default estate plan,” it may be beneficial and sometimes crucial that you develop your own estate plan through your own efforts or with the help of an attorney. The “default estate plan” established by the state legislature can only do so much; it is important to know its terms and limitations.