Trusts and Estate Planning - Failing to Make and Leave a Will

Trusts and Estate Planning: Failing to Make and Leave a Will

Although estimates vary, it's pretty safe to say that more than 50 percent of the people who could make and leave a will fail to do so.

The people who fail to make and leave a will include many people who, in theory, should know better. One lawyer who failed to make and leave a will was the 16th President of the United States, Abraham Lincoln.

In addition, among those people who have made plans for the future, some have made plans that are legally defective. There are so-called wills that are defective because they have not been prepared according to the required formalities. There are also wills prepared according to the required formalities that are so well hidden that they cannot be found. When people try to make a will without the assistance of a lawyer, they seem bound to make a mistake.

The Effect of Failing to Make and Leave a Will

A person who dies without leaving a will (or who leaves a will that cannot be found) is said to have died "intestate." Each state provides a default plan under which the property of an intestate is disposed. The default plan is usually known as the state's "statute of descent and distribution." Those who follow in the ownership of an intestate's property are said to take intestate's property by "intestate succession."

Traditionally, the word "descent" means the transfer of land after death to a person known as an "heir." Traditionally, the word "distribution" means the transfer of property other than land after death to a person known as a "distributee." Despite the traditional distinction between land and property other than land, it is correct to say that heirs and distributees "inherit" property. Both heirs and distributees take land and property other than land by "inheritance."

You Can't Be the Heir of a Living Person

One common error is using the word "heir" to refer to a someone whose potential benefactor has not yet died. Descent of a person's property does not occur until that person has died. Simply put, you can't be an heir of a living person. If you die first, you don't inherit anything! Accordingly, a person who expects to inherit, but may not, is known as an "expectant heir." A "prospective heir" is a person likely to inherit. Among prospective heirs, the person most likely (but not certain) to inherit after a potential benefactor's death is known as the potential benefactor's "heir apparent."

How to Avoid Your State's Default Plan for Your Property

The most common way to avoid your state's default plan for your property after your death is to make and leave a "valid" (i.e., legally effective) will. A lawyer can help you make a valid will. A lawyer can also suggest, where appropriate, other ways of avoiding your state's default plan.

Copyright 2011 LexisNexis, a division of Reed Elsevier Inc.