August 31, 2010

The Impact of Dying Without an Estate Plan

curtBy Curt Ford
Nash Nash Bean & Ford

Most of us expect that tomorrow will be another day like any other. But, as Euripides said, “no one can confidently say that he will still be living tomorrow.” In fact thousands of people die in the United States every single day. Some of them die of long-term illnesses. But, many of them die unexpectedly from accidents, heart attacks, and other tragedies.

Let’s look at what would happen if you died without planning in advance. First, if your death were preceded by a period of incapacity, your family might not be able to access funds that were needed during your illness. Without a Durable Power of Attorney for Property, financial institutions and other companies and organizations (Social Security Administration, utility companies, etc.) will not speak with anyone trying to assist you. Next, if you had not legally expressed your wishes with regard to your end-of-life care, your family might not be able to carry out your wishes. A Health Care Power of Attorney, Advance Health Care Directive, Health Care Proxy or Living Will would be needed to empower the person whom you designate to assist you.

After your death, the probate court would appoint an executor or administrator for your assets. In some states this can be a time-consuming and expensive process. Often, this process can be made less burdensome if you had planned with a Trust. But, in the absence of planning, there are no legal instructions with regard to the disposition of your assets. In other words, you were “intestate.”

When you die intestate, the distribution of your assets is set by a pre-determined list for intestate succession that varies from state to state. Typically, it is some combination of your spouse, descendants, and family of origin. But, without a valid Will, you do not get to specify who gets how much. You have to rely on what your state has set as the default for distribution. This may be far from what you have in mind. For example, if you have an unmarried partner, he or she would get nothing.

Even more importantly, without a Will, you would have no input into who will raise your minor children or provide assistance for an adult child with special needs. State law and the judge will determine that for you. Of course, the judge would not be privy to your experiences and may make a different decision without the benefit of your guidance.

Unfortunately, the question is not if you will die, but when will you die. When you die, you can leave a plan to achieve your goals and care for your family or you can leave it to chance. Your family and your hard-earned assets are too important to pass without your direction. Contact a qualified estate planning attorney today. They can prepare a plan for you which achieves your goals of passing your assets to whom you wish and make sure that your selection of guardians for your children are heard by the court. The planning can even help minimize estate taxes.

Nash Nash Bean & Ford are members of the American Academy of Estate Planning Attorneys and the National Academy of Elder Law Attorneys. To receive a copy of our most recent newsletter “Your Estate Matters” or for a free consultation on Estate or Long Term Care Planning, call 309-944-2188, 309-762-9368 or 1-800-644-5345. You may also contact our firm by email at or visit our web site at

The firm devotes its practice primarily in the areas of estate, business and tax planning and related areas of the law, as well as elder law and trust administration and probate. We offer guidance and advice to our clients in every area of estate planning.

This column is designed for general information purposes only, and is not intended, nor should be construed or relied upon, as legal advice. Please consult your attorney if specific legal information is desired.