The Beast of Passing Away Without a Will: Unintended Consequences

Everybody knows it is best to have a will in place, at a minimum.  Yet, many do not have a will (or anything else for that matter) to direct what they would like to have happen to their property when they pass away.  This is okay though.  Right?

Like any other legal question, the answer to this question depends on the circumstances.

When a person passes away without a will, the law refers to it as intestacy.  In an intestacy scenario, you have to turn to the law to see what happens with the deceased person’s property.  Things to consider in Idaho include whether the deceased was married or not, had any children, is survived by a parent (or both) and whether the property the deceased had was all community property or if there is an argument that some of the property was separate property under the law.

When there is a surviving spouse involved, Idaho Code § 15-2-102 breaks down what happens with community property and what happens with separate property.  If all of the deceased’s estate is community, then it all goes to the surviving spouse.  Alternatively, if any portion of the estate is separate property between the deceased and the surviving spouse, then Idaho law breaks it down into the following three categories:

1. No surviving children or parent(s) of the deceased;
2. No surviving children, but the deceased is survived by at least one parent; and
3. There are surviving children of the deceased.

Number 1 above is clean because the entire “intestate” estate will go the surviving spouse by virtue of the deceased not being survived by any children or parents.  However, numbers 2 and 3 above obligate the surviving spouse to share 1/2 of the separate property with either the children or the parents of the deceased.

This does not seem like a big deal at first glance because the deceased’s property stays within the family.  However, what if the children are the surviving spouse’s step-children and were estranged from the deceased?  Same for the parents?  Or what if there is a strained relationship between the surviving spouse and the deceased’s children or parents?  They would not be likely to share the wealth with the surviving spouse whether the surviving spouse needs the help or not.  This can be particularly tricky when dealing with real property where the surviving spouse is needed.

This is where the unintended consequences can result from reliance on the law to determine who gets what when you pass away.  Do not leave it up to chance and do not leave your estate open to a potential legal battle amongst your loved ones.  In short, do not leave it up to the State to determine how your assets are to be distributed to the ones you leave behind.

For a consultation to discuss your estate planning needs, please contact an attorney at BWL.Legal as soon as possible at (208) 331-9393.