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New Year’s Pledge: Avoiding Intestacy and The Probate Courts

Clarkston Legal Dec. 28, 2021

Like diet and exercise, estate planning is often at the top of New Year’s Resolutions. Just as the diet fades by St. Patrick’s day, and trips to the gym stop with the onset of warmer weather, estate planning never seems to get planned.

This is not good because, in some cases, it can lead to intestacy. Intestacy is the status of dying without a will or any other estate planning instrument, like a trust.

A trust avoids probate by transferring ownership of your assets into your trust; funding the trust with assets that no longer require the probate process. Even a simple estate can benefit from avoiding probate court with a trust.

At Clarkston Legal, prospects contact us sometimes when avoiding probate court is too late; they wait too long to install a trust package, or even a simple will to make the inevitable probate process easier. These instruments are important because they allow individuals to convey their intentions and wishes as to the specific disposition of their estate as well as funeral and burial details.

Individuals that die intestate, whether intentionally or not, leave it to state law to divide and distribute their estate; worse, intestate decedents may leave their family and loved ones guessing as to their funeral and burial details. This is why a well-thought-out estate plan is important to execute and from time to time, review and revise.

The costs of ignoring an estate plan can sometimes be steep. One of our recent prospects had lived with a significant other for over 30-years; they never married and the house was in the decedent’s sole name; “he always told me he would take care of me when the time came”. When the time came, however, the decedent died without a will; intestate. Our prospect asked if there was any way to preserve an ownership position in the home.

This was difficult news to digest for our prospect: unless their adult child agreed to cooperate by transferring an interest in the property to the surviving parent -he did not- our prospect had no rights to any of the decedent’s estate; a person with whom she spent over thirty years of her life, and with whom she had a child.

A simple estate plan could have easily solved this problem. Regardless of an individual’s marital status, estate plans direct assets to an individual's selected and intended beneficiaries. Estate plans also provide funeral and burial details. One of our old Law Blogger posts from May 2013 illustrates the consequences of intestacy. A Holocaust survivor, who lost his entire family in Germany, including his young wife, relocated to New York and built an estate worth several million dollars.

Although he remarried a New Yorker, he and his second wife never had children and she predeceased him. At the time of his death, he had no estate plan. As a result, his millions escheated to the State of New York.

Even without any family whatsoever, the decedent could have identified a charity to receive the fruits of his labors. People that have toiled for decades to compile an estate should take the time to plan for their estate succession.

Our law firm provides a free initial consultation to assess your estate planning needs. We quote a reasonable fee; one-half of the retainer is due upfront; the other half is due at the execution of the estate plan.

A call to our office is the initial step toward fulfilling your New Year’s resolution of completing an estate plan. Let us help you get there with our professional follow-through and user-friendly approach to executing an estate plan.