Did you know that nearly 68% of Americans don’t have a will? I’ve spent five decades as an estate and personal injury attorney, and I’ve witnessed first hand the chaos and heartbreak that ensues when someone dies without this critical document.
Most people assume their assets will automatically transfer to their spouse or children according to their wishes. Unfortunately, this widespread misconception leads to devastating consequences for families already dealing with the loss of a loved one. In this article, I’ll explain the dangers of dying without a will, explain how property actually passes in these situations, and provide you with actionable steps to protect your family’s future.
What Actually Happens When You Die Without a Will
When I meet with new clients, their most common assumption is that their
spouse will inherit everything if they die without a will. After practicing estate law for over 50 years, I can tell you with certainty: this is dangerously incorrect. When someone dies without a Last Will and Testament their solely-owned property doesn’t automatically go to their spouse or even their children. Instead, it gets distributed according to predetermined statutory formulas created by state legislators who never knew you or your unique family situation.
How Property Transfers Work Without a Will
Before diving deeper, it’s important to understand which assets are affected when you die without a will. Not everything you own will necessarily be subject to your state’s intestacy laws. Generally, these property types transfer outside of probate (and aren’t controlled by a will):Property held jointly with another person with right of survivorship; Accounts with designated beneficiaries (like life insurance policies; Retirement accounts, and payable-on-death bank accounts; Property held in a living trust and Contractual investments with named beneficiaries.
However, solely-owned property with no designated beneficiary will pass according to your state’s intestacy statutes. This includes:
- Real estate titled solely in your name
- Bank accounts without payable-on-death designations
- Vehicles, personal belongings, and other personal property
- Business interests Investments without beneficiary designations
I’ve seen countless situations where people believed their affairs were in order because they had named beneficiaries on their life insurance policies and retirement accounts, not realizing their house, investment properties, and personal belongings would still be distributed according to state law rather than their wishes.
State Laws Control Your Legacy: A Kentucky Case Study
Each state has different laws governing intestate succession. In my home state of Kentucky, the intestacy statutes (KRS 391.010 and KRS 391.030) create a succession plan that surprises most people when I explain it to them. Here’s how individually owned property passes in Kentucky when someone dies without a will:
- First to children or their descendants (grandchildren, great-grandchildren)
- If no descendants exist, then to parents
- If parents are deceased, then to siblings and their descendants
- Only if none of these relatives exist does the spouse inherit everything
While a surviving spouse is entitled to the first $30,000 of personal property when other heirs exist, they can be effectively disinherited from the majority of an estate. This often creates devastating financial hardship for surviving spouses who assumed they would inherit everything.
The Surprising Ways Intestacy Laws Can Disrupt Families
The dangers of dying without a will extend far beyond financial considerations. Without a will, you also lose control over several critical decisions:
Guardianship of Minor Children
Without a will naming guardians for your minor children, a court will decide who raises them if both parents die. This decision may not align with your wishes and can lead to custody battles between family members.
Family Business Succession
If you own a business and die without a will or succession plan, your ownership interest may be fragmented among heirs who have no interest or ability to run the company.
Blended Family Complications
For blended families, dying without a will can create particular hardship, often unintentionally disinheriting stepchildren who weren’t legally adopted. Without a will, your state’s one-size-fits-all intestacy laws—not your wishes—determine who inherits your property, who raises your children, and how your legacy is distributed. These laws rarely align with what most people would choose for their families.
Creating Your Will: Easier Than You Think
After hearing these cautionary tales, many clients tell me they”ve put off creating a will because they think it’s complicated, expensive, or simply uncomfortable to contemplate their own mortality. I understand these concerns, but after helping many families through this process, I can assure you that creating a will is far easier than dealing with the consequences of not having one.
Creating a proper will typically involves:
- Taking inventory of your assets and liabilities
- Deciding who should inherit your property
- Selecting an executor to administer your estate
- Naming guardians for minor children
- Consulting with an experienced estate attorney
- Signing your will with proper witnesses according to state law
The process usually requires just two meetings with an attorney: one to discuss your wishes and another to review and sign the documents. Most clients tell me afterward they wished they hadn’t waited so long—that the process was much easier than they expected.
The Peace of Mind a Will Provides
Beyond the practical and financial benefits, having a will provides immeasurable peace of mind. I’ve had countless clients tell me they sleep better at night knowing they’ve protected their loved ones and ensured their wishes will be respected. Having a will isn’t just about distributing property—it’s about caring for your loved ones even after you’re gone.
Take Action Today
After five decades helping families navigate the complexities of estate planning, my most urgent advice is simple: don’t wait to create your will. I’ve seen too many families torn apart by preventable conflicts and unnecessary financial hardship because someone procrastinated on this essential document.
Remember that a will is not just for the wealthy or elderly. If you own anything of value—whether it’s a home, savings account, family heirlooms, or simply personal belongings with sentimental value—you need a will to ensure those items pass according to your wishes.
I encourage you to take the first step today by scheduling a consultation with an experienced estate attorney. The small investment of time and money now can save your loved ones immeasurable grief, conflict, and financial strain later.