Most people don’t really think about making a will until they reach retirement age, and even then, many put it off until it’s too late. But if you were to die without a will, have you ever thought about what would happen to your assets? Who would take care of your minor children? How necessary is a will, anyway?
If you die without a will, you’re said to have died intestate. Without a legally binding will to tell the world what you want done with your property, we have to guess. But a court can’t simply take statements from your family and friends about what they think you would have written in a will if you had one, based on your values and priorities. Instead, we have a set of laws that apply the same values and priorities to anyone who dies without a will. These are the laws of intestacy.
What happens to my property?
For example, suppose you have a girlfriend you love like a wife and a best friend you love like a brother, but you have a bad relationship with your family. If you wrote a will, you’d probably leave most of your property to your girlfriend and a special gift or two to your best friend. If you die without a will, however, the laws of intestacy decide where your property goes, and the laws of intestacy assume you want to give your property to your blood relatives. In Idaho, all your property would go to your parents. If your parents were not living, then your property would go to your parents’ other children (your siblings).
Think about the blended family, with the couple who each want to leave their property to their separate children. Under the Idaho laws of intestacy, the spouse would inherit one half of the dead spouse’s separate property and all of the “community property” (everything acquired or earned during the marriage except gifts or inheritance). What if a parent in this couple wanted to treat all of the children as his or her own? Without a will (and without legally adopting the children), the property would go only to the parent’s spouse and own biological children.
Or what about a couple who are living together but not married? Idaho doesn’t recognize common law marriages after 1995. So if someone in one of these types of relationships dies without a will, their partner can’t inherit. The law sees them as unmarried, so all the property would go to blood relatives. In fact, if a couple is married, it doesn’t matter how close they are. Even if the couple has separated, the spouse would take all of the community property and half of the dead spouse’s separate property without a will. If there are no children or living parents, then the spouse would take the entire estate.
Many people want (or need) to treat different children differently. Whether wealthy or poor, close or estranged, gifted or disabled, the laws of intestacy give each of your children the same equal share of your property. And that’s only if they’re your biological or legally adopted child. Even if you raised the child, without that legal relationship, the child will inherit nothing.
If you make a will, however, you can decide exactly who gets your assets when you die. You could leave everything to your neighbor and disinherit your entire family if you so choose. That’s the beauty of the will—it lets you keep control of your assets even after your death.
What happens to my children?
If only one of the children’s parents dies, then the surviving parent continues to care for them. But if all parents are dead or otherwise disqualified as parents, it gets more complicated. The court can appoint legal guardians for children whose parents have died, but the process can be long, expensive, and messy. There could be many people angling for guardianship of your children when you die. Idaho law permits any family member or any “person interested in the welfare of the minor” to apply to the court for appointment as guardian. If a child is fourteen or older, then even the child may appoint someone to act as guardian.
Once the applications have been made, the court has to choose the guardian that would be in the best interests of the children. As you might guess, arguing over which applicant is best for the children can be complicated and emotional. Meanwhile, the court might have to appoint a temporary guardian, and choosing that guardian can take time. And the court may very well appoint a guardian ad litem for the children to work with the attorney hired to represent the children’s interests in court.
This is usually not what the parents would want for their children. If you make a will, you can designate a guardian for your children in the event of your death. As long as the person(s) you designate accept the appointment as guardian, and as long as they are not unfit to care for children, then the court will follow the will. Even if someone else could prove they would be a better guardian, the court will follow your wishes as expressed in your will.
Don’t wait to make your will. Talk to an estate planning attorney today about taking control of your assets and providing for your children.