What happens if I don't have a Will?
Updated: Jun 1
If you pass away without a Will it is called passing intestate.
So what happens?
It depends on a number of factors. If there are minor children, has the other parent also passed? For your stuff, is there a co-owner? Is there a designated beneficiary that the property is automatically transferred to at your passing?
More than just about your stuff-
A Will is also the document that appoints guardians and conservators for your minor children at your passing. Without a Will appointing a guardian and conservator, the probate judge will do so.
Your worst decision for a guardian and conservator of your minor child is most likely better than the judge’s best decision.
You know your family and children best. Make the decision about who will raise your children if you have passed.
The probate process allows for claims against the estate (debts you owed) and transfers property that you held in your name alone. Your Will is the instructions for how debts are to be paid and what to do with your stuff. Without a Will, the state of Michigan has instructions for you.
The State instructions:
If you do not have a Will the state will divide your property based on a formula centered on those surviving and their relation to you. Notice this is NOT their relationship with you; rather, how you are biologically related.
This list is greatly simplified, for complete information see MCL 700.2102 and MCL 700.2103
If you die with- here’s what happens:
Spouse but no descendants or parents - spouse inherits everything
Children but no spouse - children inherit everything
Parents but no spouse or descendants - parents inherit everything
Siblings but no spouse, descendants, or parents - siblings inherit everything
Spouse and parents - spouse inherits the first $150,000 of your intestate property, plus 3/4 of the balance, parents inherit everything else
Spouse and descendants from you and current spouse - spouse inherits the first $150,000 of your intestate property, plus 1/2 of the balance, your descendants inherit everything else
Spouse, at least one descendant from you and current spouse, and at least one descendant from another relationship - spouse inherits the first $150,000 of your intestate property, plus 1/2 of the balance, your descendants inherit everything else
Spouse, no descendants from you and that spouse, and at least one descendant from another relationship - spouse inherits the first $100,000 of your intestate property, plus 1/2 of the balance, descendants inherit everything else.
Potential problems with the State plan:
1. That’s not what I want. The state plan does not consider the complexity of family dynamics, financial stability or maturity.
2. Blended families. Do you have step-children that you love and treat as your own? The state plan does not consider them children and they may be disinherited. (more on this later)
3. Not Married but in a long term relationship. Unmarried partners are not accounted for in the formula, only biological family members. If you want to make sure that your loved one is taken care of a Will and additional steps need to be taken.
4. The State formula does not permit charitable giving.
5. If you are single with no children your stuff is going to your parents or siblings, even if you don’t get along.
An experienced estate planning attorney can help you create a valid Will that appoints guardians and conservators for your minor children, gives instructions for your stuff, as well as advise on how to title assets to avoid probate altogether.
Information in this blog post is not legal advice but general information. Contact an estate planning attorney to implement a plan for you.