What Happens When You Die Without A Will?

The title of this article actually is a misnomer. Everyone from the day they are born has a will. For those who die without a making their own will (such people are said to die “intestate”), the Arkansas legislature has passed into law the Arkansas Inheritance Code. In theory, the Inheritance Code is the legislature’s best guess at how you would have drafted your will had you actually done so. So, the precise question is not whether you will die with a will, but whether it will be the one you draft or whether it will be the one the Arkansas legislature has drafted in statute. As you will see, it may be what you wanted, but there is a great chance it is not.

So Who Gets My Stuff?

Married People

If you’ve been married for at least three years and have no children, 100% your property goes to your spouse. For most people, this make sense and is what they want. But things get a bit whacky if you and your spouse have children, or if you’ve been married for less than three years.

If you’ve been married less than three years and have no children, 100% of your property goes to your parents (you will notice the 100% nature of each scenario; the Inheritance Code is mostly an all-or-nothing thing). Essentially, to protect against fraudulent “death bed marriages”, the Legislature imposes a three-year time period to make sure the marriage has real substance. So, if you were married to your spouse two years and three hundred sixty-four days, you get nothing, and your spouse’s parents get everything. Since most marriages don’t take place in the manner that has our legislature worried, this is obviously not what most newly married couples want.

Next, with just a few exceptions, if you have kids—and this is regardless of how long you’ve been married—your kids will get everything. To be honest, I have no idea what convinced the legislature to set up the Inheritance Code this way. Imagine your spouse dying and your children now own your spouse’s half interest in your home. Or imagine if you have no ownership interest in your spouse’s home because, for example, they purchased the home before you married. In that situation, subject to your right of dower or curtesy—which I will explain below—your kids will own the home.

Dower and curtesy are the respective post-death marital of spouses to property. In real property, the surviving spouse gets a life estate in a 1/3 fractional interest in the property. A life estate is less than ownership; it is simply the right to live in property for the duration of one’s life. Since a person with a life estate does not own the property, they cannot sell the property; they may only sale their life estate.

And no one wants to buy a life estate.

For these reasons, almost nobody with children will want to die without a will.

Unmarried People

If you are not married and have no children, 100% your property will go to the person or persons who are highest on the following list (what we call the “table of descents”):

  • Surviving parents, sharing equally;
  • Surviving siblings and the descendants of any deceased siblings, sharing equally;
  • Surviving grandparents, aunts, and uncles, sharing equally;
  • Surviving great-grandparents, great-aunts, and great-uncles, sharing equally;
  • The State of Arkansas!

So, if you have a surviving parent, your siblings will get nothing. Is this what you want? If you don’t have a will drafted, I hope so!

Are There Other Consequences Of Not Making A Will?

Yes. Your will has the power to do more than just declare who gets your stuff. Among those things are (1) nominating a guardian for your children; (2) declaring what property to sell first and last in the event the sale of property is necessary to pay outstanding creditors’ claims; and (3) giving your personal representative the authority to sell property without specific court approval.

As you can see, there are many more post-death conflicts than just who gets your stuff.

I Made A Will, So Is This Post Relevant To Me?

For many people, yes. And I’m impressed that you’re reading this article if you’ve made a will. There are two scenarios in which this Inheritance Code becomes relevant for people who sat down and drafted a will.

First, your will, or a specific provision in your will, may be invalid. Any property that is not covered by a will, regardless of why, is subject to the Inheritance Code. The most common reason is that someone attempted to make a will without a lawyer and did not comply for Arkansas’s requirements for making it. But there are also scenarios in which valid will can have invalid provisions. That topic is way too big for this post, but any experienced estate-planning attorney will spot them.

Second, your will inadvertently may not cover all the property you own. to avoid this scenario, most attorneys draft what’s called a “residue clause”, in which all property that is not specifically given (or “devised” as we say) is given to a particular person or persons.

Do These Rules Apply If I Die With My Property In Trust?

The Inheritance Code applies only to property that is in your estate, i.e. property you own. If you property is in trust, then a trustee owns the property on your behalf. If all your property is in trust, the trust agreement governs the use and disposition of your property, not the Inheritance Code. HOWEVER, it’s all too common for people to fail to convey all their property into trust, in which case the Inheritance Code would apply to that non-trusted property.

If I Die Without A Will, Can My Property Go To My Alma Mater?

No.*

 

 

*This is an actual question I’ve been asked.