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What Happens When You Don’t Make a Will

When a person dies without a Will, or dies “intestate” as the law calls it, the property of the deceased is distributed according to a formula fixed by law. In other words, if you don’t make a Will, you don’t have any say as to how your property will be distributed.

For example, if a person dies without a Will, leaving children, the surviving spouse would share the estate with the children. With no Will, the surviving spouse receives the first $30,000 in value of property other than real estate, and one-third of the remaining estate where there is more than one child or one-half of the remaining estate where there is only one child.

Usually a person would prefer that all of his estate, if it is not large, go to the surviving spouse. If there are any children under 18, the property cannot be delivered to them and a guardian must be appointed for them. A guardian will entail considerable expense and could create legal problems that might have been avoided with a Will.

Most important, however, for mothers and fathers is not the disposition of their property after their death, but rather the proper care and custody of their minor children. Grandparents, other family members and godparents do not automatically receive custody of children who do not have a surviving parent. Your Will should specify the individuals, as well as alternates; you would like to designate as guardians of your children. This decision on your part will be of great assistance to the court in determining who will receive the custody of your children.