For various reasons, many Mississippians are hesitant to discuss documents like a will or an advance healthcare directive. Some don’t want to think about their own demise. Others feel like drafting a will is tantamount to admitting death is imminent, and who would want to advance his or her own decline, however superstitiously? In the absence of discussion, misconceptions sprout and are passed along. The following is Misconception #1:
1. When I die, all my property goes to my spouse.
When you die without a will, you are said to have died intestate (as opposed to dying with a will, which is known as dying testate). (Side Note: Autocorrect often wants to change “intestate” to “interstate,” which results in some legal documents appearing to claim that someone died with his or her body lying across the state line.)
When you die intestate, your property is distributed according to the laws of intestate succession, a system that determines your closest living relatives. While this seems simple at first, when represented in visual form it becomes a dizzying diagram of ever-expanding “circles” or degrees of relation. The innermost circle represents your spouse, if you’re married, and your children, if any. If you have never had children and you are married to your first spouse, then generally all your property will go to your spouse. So this misconception is, in fact, true in this limited circumstance.
However, if you have children, your property is divided between your spouse and your children. For instance, if you have one child, that child inherits half of your property and your spouse inherits the rest. This situation may not pose much difficulty if the child is young and your spouse can serve to hold the property in trust until the child is older.
Things start to get more complicated if you have a blended family. For example, if you are married to your second spouse and have children both from your first and second marriage, your property will be split in equal parts between your current spouse and each of your children. If any of your children from the first marriage are still minors, the property will likely have to be held in trust. The trustee for the child is often their natural parent; in this case, your first spouse. Under these circumstances, your first spouse could end up effectively co-owning (as trustee) property with your second spouse!
Division of property can become infinitely more complicated depending on the circumstances. While it’s true that some property passes outside the estate (think of a deed to property with “right of survivorship” or a bank account with a “payable on death” beneficiary), and that other circumstances can effect the outcome (such as your surviving spouse’s homestead and allowance rights), it’s easy to see how dying without a will can lead to some unusual and unexpected results.
At the very least, it’s important to educate yourself and actively choose whether or not to have a will. Hoping for immortality while failing to plan ahead could leave your loved ones in a difficult spot. Take the time to sit down with a qualified attorney and learn the implications of dying without a will as it applies to your specific situation – then make the decision to will or not to will.