Trusts and Estate Planning - Inheritance Without Planning Means No Adding to the Default Plan

Trusts and Estate Planning: Inheritance Without Planning Means No Adding to the Default Plan

When a person dies intestate (without making and leaving a will), each state provides a default plan (usually known as the statute of descent and distribution), under which his or her net estate is disposed. When a person dies intestate, there is no adding to the default plan. The default plan is the only plan. This article discusses the disadvantages of descent and distribution related to the inability to add to the default plan.

Who Inherits

Under descent and distribution, a person who wants to plan the disposition of his or her estate cannot transfer his or her property to persons or entities who are not the ''natural objects of one's bounty.'' The types of persons and entities who are not the ''natural objects of one's bounty'' include friends, strangers, businesses, charities, governmental organizations, political organizations, religious organizations, and schools.

Transfer to persons or entities who are not the "natural objects of one's bounty" is necessary where there are no "natural objects of one's bounty." Escheat (transfer of an intestate's property to the government as a last resort, because no legal beneficiary exists to take the intestate's net estate) can be avoided only outside of the normal sequence of descent and distribution.

Under descent and distribution, a person who wants to plan the disposition of his or her estate cannot assure expectant heirs that, if they survive the person making the plan, they will inherit. Such a person cannot anticipate the existence of a posthumous child or anticipate the existence of other afterborn heirs. Such a person cannot assure transfer of his or her property to adopted children or adoptive parents, or to other persons related as the result of an adoption. Such a person cannot assure transfer of his or her property to illegitimate children or illegitimate parents, or to other persons related as the result of an illegitimate relationship.

How They Inherit

Under descent and distribution, a person who wants to plan the disposition of his or her estate cannot arrange to have his or her property transferred in steps or stages, rather than all at once. Such a person cannot put conditions on the transfer of his or her property. Under descent and distribution, a person who wants to plan the disposition of his or her estate cannot specify, in each transfer of his or her property to a group, whether per capita or per stirpes will apply.

Some of the Advantages of Making a Will

All of the disadvantages of descent and distribution related to the inability to add to the default plan can be overcome by making a will. To overcome the disadvantages of descent and distribution, have your lawyer prepare a will (and any other estate planning documents) for you.