Inheritance
without planning means no changing the default plan.
When a person dies intestate (without making and leaving
a will), each state provides a default plan (usually
known as the statute of descent and distribution) under
with his or her net estate is disposed. When a person
dies intestate, there is no changing the default plan.
The default plan's sequences for determining who
inherits and how much can not be changed. This article
discusses the disadvantages of descent and distribution
related to that inability to change who inherits and how
much.
DIVISION OF THE ESTATE
Under descent and distribution, a person who wants to
plan the disposition of his or her estate cannot have
any item of property transferred separately from the
rest of his or her property to any particular person or
group. For example, a person cannot leave a particularly
sentimental item of property, such as a wedding ring, to
a particular person apart from the rest of his or her
property. Moreover, a person cannot give joint ownership
of his or her property to a group of people.
WHO INHERITS
Under descent and distribution, a person who wants to
plan the disposition of his or her estate cannot
disinherit an expectant heir or prospective heir, or
disinherit a spouse to the extent permitted by law.
Under descent and distribution, a person who wants to
plan the disposition of his or her estate cannot favor
one person in the same class over another. For example,
a parent who has four children, three of whom have been
blessed with good fortune and one of whom has not,
cannot favor the unfortunate child over the fortunate
children. Similarly, a person cannot transfer his or her
property to both a child and the child's children at the
same time.
Under descent and distribution, a person who wants to
plan the disposition of his or her estate cannot favor a
collateral relative over a lineal relative, favor an
in-law over a blood relative, or transfer property to a
stepparent, stepchild, stepbrother or stepsister. A
person cannot change the state's method of determining
his or her nearest relative.
In short, under descent and distribution, a person who
wants to plan the disposition of his or her estate
cannot transfer property to his or her "family" as he or
she defines the term "family."
HOW MUCH IS INHERITED
Under descent and distribution, a person who wants to
plan the disposition of his or her estate cannot
establish exacted how much is inherited by each heir. He
or she also cannot index the amount inherited to some
other measure, such as the heir's age or youthfulness.
SOME OF THE ADVANTAGES
OF MAKING A WILL
All of the disadvantages of descent and distribution
related to the inability to change who inherits and how
much, can be overcome by making a will. To overcome the
disadvantages of descent and distribution, have your
lawyer prepare a will (and any other estate planning
documents) for you.
Copyright 2006 LexisNexis, a
division of Reed Elsevier Inc.
