If you die without a will, it may be the last mistake you make.
When you have a will, you determine which family members, friends, or charitable organizations can have your assets after you die. Most people know that they should have a will. However, they don’t know what happens when you die without a will.
Dying without a will, also known as “dying intestate,” can have a significant effect on how your things are distributed to your family. Here are five things that can happen if you die without a will in South Carolina:
1. The State decides who gets what!
When you die without a will, the general assembly decides who will get your estate. All states have laws that determine how to divide someone’s assets if they die without a will. When a family opens a probate case, the court has to follow these laws in distributing the estate.
In South Carolina, assets are distributed by a method called “per capita by representation.” In other words, this means that the estate is distributed in the following order:
- If you don’t have kids, everything goes to your spouse.
- If you have kids, 50% to your spouse and 50% to your children.
- If you don’t have a spouse, or your spouse is deceased, everything goes to your children
- If you don’t have any children and are unmarried, everything goes to your parents.
- If you don’t have a spouse, children, or parents, then everything goes to your siblings.
- If you don’t have a spouse, children, parents or siblings, then everything goes to your grandparents.
If you die without a will, only your family inherits your things. This is fine for some people. Others would like to give certain things to friends or charities.
2. Someone who doesn’t appreciate a family heirloom may get it!
When you die, the law creates an imaginary box called your “estate.” Everything you own at the time you die is inside that imaginary box called estate. This includes all of your treasured possessions, family heirlooms, and anything with sentimental value. If you die without a will, the court will divide your things, and determine who will get which heirloom. You can make “specific devises” with a will. This means you can write in your will that you want your nephew to get your Mickey Mantle mint-condition baseball card. Otherwise, it would go to someone else in your family that maybe wouldn’t value that baseball card as much.
The probate process also costs money. These costs come out of the estate. If you don’t have money set aside to pay the probate costs, then your family has to sell things in your estate to pay legal fees. Thus, your family may sell certain family heirlooms that you intend to give to someone in your family.
If you give these heirlooms as gifts before you die without a will, then it’s possible that those heirlooms will be safe from liquidation. But this isn’t always the case. That kind of gift is called an advancement. An advancement is a gift given to someone that is intended to be an “advance” on their inheritance. Someone who gets an advancement from you may have to return the gift to the estate to receive anything else from the estate.
Even if you don’t have to liquidate the heirlooms, someone who doesn’t value the heirloom may inherit it.
Do you want your grandchildren to get a special heirloom that has been in the family for centuries? If you die without a will, the heirloom may not go to someone who will value it!
3. If you die without a will, your family gets less!
If you die without a will, your estate goes into probate. This by itself isn’t unusual, and having a will probably won’t keep everything out of probate.
But here’s the catch
If you die without a will, your family has to figure out everything:
- How much your estate is worth;
- What is in your estate;
- Who your qualifying living relatives are;
- Where these relatives live; and
- Who is eligible to inherit.
This process takes a lot longer when there isn’t a will to guide your family. The longer the probate process takes, the more it’s going to cost to settle your estate. The more it costs to settle your estate, the less your family receives.
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4. Not having a will delays your family’s inheritance!
If you die without a will, the probate process has to start from the ground up. This means that it takes a lot longer to distribute your assets when there is no will to help guide your family alone. They will have to figure out everything on their own. As a result, your family can’t receive anything from your estate while the estate is still open.
It’s always painful when someone dies. Families miss their loved ones. The probate process isn’t enjoyable because it prolongs the suffering after losing a loved one. If you have a will, it can spare your family some grief and sadness, and it will move the probate process along more quickly.
5. Your family can’t carry out your wishes if you die without a will!
If you die without a will, it doesn’t matter what you told your family about your wishes after you pass away. Having a will records your intent and your wishes for your family to carry out after your death. Without it, the court can’t enforce your wishes.
When the court can’t enforce your wishes, it must follow what the law say when it distributes your estate. This can leave your loved ones in a very frustrating situation. They may want to carry out your wishes, but are powerless to do so. They may be able to carry them out after the estate is distributed. But, there is no guarantee that all of your family will cooperate in trading your assets so that everyone is happy.
Ready to get a will? Contact us!
Getting a will is a simple and inexpensive process. With a will, you can avoid these 5 consequences. Call us today at (843) 998-0644 for a free consultation.