Inheritance Without Planning Means No Person Is In Control

Inheritance Without Planning Means No Person Is In Control

Inheritance Without Planning Means No Person Is In Control

When a person dies intestate (without making and leaving a will), each state provides a default plan (usually known as the statute of descent and distribution), under which his or her net estate is disposed. Under the default plan, no person is put in control of the disposition. The disposition must go according to the default plan. This article discusses the disadvantages of descent and distribution related to that inability to have a person put in control of the disposition.

Disposition Overseen By a Trusted Person

Under descent and distribution, a person who wants to plan the disposition of his or her estate cannot nominate a trusted person to oversee the disposition. There is no personal executor or executrix nominated by the intestate. Very often, a heir learns from a stranger what he or she has or has not inherited from an ancestor or collateral relative.

Disposition Directed By a Trusted Person

Under descent and distribution, a person who wants to plan the disposition of his or her estate cannot appoint a trusted person to transfer the estate as that trusted person deems appropriate. In other words, under descent and distribution, there is no granting of a power of appointment. Instead of person’s estate being disposed of as a trusted person deems appropriate, the state is, in effect, given a power of appointment, and the estate is only disposed of as provided in the state statute of descent and distribution.

Neither a Trusted Person Nor an Explanation

A person who wants to plan the disposition of his or her estate may not care what particular person oversees and/or directs that disposition, but may want whomever is overseeing and/or directing the disposition of his or her estate to know how and/or why he or she wants his or her estate disposed of in a particular way. Under descent and distribution, a person cannot explain how and/or why he or she wants his or her estate disposed of in a particular way. Under descent and distribution, the intestate’s last desires and intentions are irrelevant.

Nominate a Guardian

In addition to the disposition of his or her property, a person who wants to plan the disposition of his or her estate will probably want to know that his or her minor children are being well cared for. Under descent and distribution, however, a person cannot nominate a person as the guardian of his or her minor children.

Some of the Advantages of Making a Will

All of the disadvantages of descent and distribution related to the inability to have a person put in control of the disposition, can be overcome by making a will. To overcome the disadvantages of descent and distribution, have your lawyer prepare a will (and any other estate planning documents) for you.

Copyright 2012 LexisNexis, a division of Reed Elsevier Inc.