Every Fourth of July, we celebrate the right to determine our own destiny. Yet many Americans leave some of life’s most important decisions to state intestacy laws by failing to create an Estate Plan. This Independence Day, learn why declaring your independence from intestacy may be one of the most meaningful gifts you can leave for the people you love.
Every Fourth of July, we celebrate a simple but powerful idea: that people have the right to determine their own destiny. We celebrate the courage of individuals who rejected someone else’s rules and insisted on making their own. And then, statistically speaking, most of us go home and allow our state legislature to make some of the most important decisions of our lives.
There are numerous articles about the horrors of intestacy and what happens when someone dies without a Will or Trust in place and state statutes determine who gets what. If you haven’t read about a famous person passing without a will, the short version is this: it is not pretty. The state does not know your family. It does not know that you were estranged from your brother, that your eldest child has struggled with addiction, that your closest friend was more like a sister to you than your actual sister, or that you wanted your vintage record collection to go to the neighbor who actually appreciates it. The state has a formula, and it applies that formula whether it fits your life or not. There are no deviations or considerations based upon your circumstances, just the formula.
In many cases, intestacy can also increase the time, expense, and court involvement required to settle an estate, creating additional burdens for the family members left behind. This Independence Day, I want to make a simple but serious case: declaring your independence from intestacy is one of the most meaningful things you can do for the people you love.
What Intestacy Actually Means
Intestacy is the legal term for dying without a valid Estate Plan. Every state has intestacy laws, a predetermined hierarchy that dictates who inherits your assets when you have not left instructions of your own. In most states, that hierarchy looks something like this: surviving spouse first, then children, then parents, then siblings, and so on down the family tree. Sounds reasonable enough, until you consider the complications that real life introduces.
What if you are unmarried but have been with your partner for fifteen years? Intestacy laws in most states will give that partner nothing. What if you have children from a prior relationship and a current spouse? The intestacy formula may divide your estate in ways that leave your spouse unable to stay in the family home. What if your closest living relative is someone you have not spoken to in a decade? Under intestacy, they may inherit everything. Intestacy does not account for the texture of your actual life. It accounts only for legal relationships, and even then, only in the order the legislature decided upon rather than the order that you would choose.
The Freedoms a Proper Estate Plan Gives You
Just as the Declaration of Independence was not merely a rejection of British rule but an affirmative statement of rights and values, a proper Estate Plan does more than reject intestacy. It serves as an affirmative declaration of your own wishes and values.
With a comprehensive Estate Plan, you have the freedom to:
Leave your assets to whomever you choose. You can leave assets to your college roommate, your church, your favorite charity, your grandchildren, or a mix of all of them. You can determine the proportions they receive and whatever timeline and conditions make sense for your family.
Name a guardian for your minor children. For many parents, this is the single most important decision in their Estate Plan. If you do not make that choice, a judge may ultimately be asked to determine who will raise your children.
Choose who administers your estate. The person who settles your affairs after your death should be organized, trustworthy, and capable of handling the task with care. Intestacy does not give you that choice. A Will or Trust does.
Protect a surviving spouse or partner. A properly drafted Trust can ensure that your spouse has access to income and assets during their lifetime while also protecting the remainder for children or other beneficiaries. Intestacy cannot achieve this balance.
Plan for incapacity as well as death. A comprehensive Estate Plan includes a Durable Power of Attorney and an Healthcare Power of Attorney. These documents give trusted individuals the legal authority to make financial and medical decisions on your behalf if you are unable to do so yourself. Intestacy addresses only what happens after death. It offers no guidance at all if you are alive but unable to manage your own affairs.
The Most Common Reason People Put Estate Planning Off
People delay creating an Estate Plan for a myriad of reasons. Sometimes it’s the perceived cost, other times it’s the anticipated complexity. For some, a belief that they do not need an Estate Plan yet, that only older individuals, wealthy individuals, or settled individuals need an Estate Plan.
The Declaration of Independence was not signed by people whose lives were settled. It was signed by people who understood that uncertainty is precisely the reason to act, not a reason to wait. You do not need to be wealthy to need an Estate Plan. You need only have people in your life about whom you care. You need to have opinions about what should happen to your belongings. You need to have a preference about who makes decisions for you if you cannot make them yourself. If any of those things are true, then you need an Estate Plan.
A Declaration Worth Making
The Founders did not leave the future of the nation to default rules and crossed fingers. They wrote it down. They were specific. They argued about the language, revised it repeatedly, and ultimately put their intentions in writing. Your Estate Plan does not require that level of drama. But it does require a decision: the decision to declare, clearly and legally, what you want to happen to your assets, your dependents, and your legacy when you are no longer here to speak for yourself.
This Fourth of July, between the potato salad and the fireworks, consider making that declaration. A qualified Estate Planning attorney can help you create a plan that reflects your actual life, your actual family, and your actual wishes, not the state’s best guess at what those might be. The question is not whether someone will make these decisions. The question is whether it will be you or the state. Freedom, as it turns out, requires a little paperwork.
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