If you die before making a will, the "descent and distribution" laws of the state in which you reside become your will. Although descent and distribution laws vary from state to state, they generally result in the surviving spouse's financial activities being restricted where there are children of the marriage and no efforts being made to save on estate taxes. If you do not have a valid will, these laws may mean the following:
Instead of giving your entire estate to your surviving spouse, the state may give your spouse only a third of your estate, with the other two-thirds going directly to your children.
Your spouse may have to make a yearly report of how he or she is managing any money the state grants to your underage children until they come of age.
Your spouse may have to post a bond to guarantee that he or she will responsibly manage the money the state grants to your underage children.
Your spouse may be asked by your children (when they come of age) to account for all transactions with their money.
When your underage children come of age, they may receive all of the money granted to them by the state in a lump sum, even if they're not ready for that type of responsibility.
If both you and your spouse die without a will and your children are minors, the state may decide who will be your children's guardian regardless of your wishes. Your family could end up in court fighting over the kids, or they could end up with a stranger.
If your spouse remarries after your death, his or her new spouse may be entitled to an interest in the assets from your estate.
The new spouse will not be legally required to use those assets for the benefit of your children.
When the new spouse dies, his or her interest in your estate assets becomes part of his or her estate to deal with in a will or trust as he or she desires. He or she will not be required to leave any of those assets to your children.
If any of your children have special needs, or if you give any of your children "advances" against their inheritance, the state will not consider those circumstances in dividing up your estate.
Instead of going to specific family members, your family heirlooms may be divided up, with one-third going to your spouse and two-thirds to your children. If the family cannot agree, the court can have the heirlooms sold and divide the proceeds. The court will not consider any oral promises you made to specific family members about individual items.
Your estate will be forced to go through probate, even if you could have avoided it easily with estate planning before your death.
If probate and attorney fees pose a financial hardship for your spouse, he or she can only ask the court for an advance against the estate.
If you do not have an estate plan, you may be liable for the maximum tax to be levied against your estate, leaving less for your family.