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Inheritance Without Planning Means No Provisions Beyond the Default Plan

Inheritance Without Planning Means No Provisions Beyond the Default Plan

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. When a person dies intestate, there is no adding of provisions beyond the default plan. The default plan is only the plan and nothing more. This article discusses the disadvantages of descent and distribution related to the inability to add provisions beyond the default plan.

Straighten-out Financial Situations

State statues of descent and distribution are not designed to straighten-out the financial affairs of an intestate. Death usually leaves financial loose-ends. Under descent and distribution, a person who wants to plan the disposition of his or her estate cannot forgive debts, loans, or advancements owed to the person or his estate. Such a person cannot anticipate the assignment of an expectancy, a renunciation, or a disclaimer.

Make Moral Judgments

It is important to note that, for the most part, the a state statute of descent and distribution does not make moral judgments, other than to assume that an intestate would want his or her property to go to the “natural objects of his or her bounty” after his or her death, as determined by the state legislature in advance of his or her death in a non-personal manner.

Under descent and distribution, a person who wants to plan the disposition of his or her estate cannot transfer property based on his or her own judgment of the heir’s or other recipient’s moral worthiness. Related to this point is the fact that under descent and distribution, a person who wants to plan the disposition or his or her estate cannot favor one person in the same class over another. For example, a parent who has four children, three of whom have been blessed with good fortune and one who has not, cannot favor the unfortunate child over the fortunate children.

Disposition of One’s Dead Body

State statutes of descent and distribution are only designed to dispose of an intestate’s net estate. When a person dies, some matters may need to be provided for other than the intestate’s net estate. A human body is not property in the sense that it can be bought or sold. Under descent and distribution, a person who wants to plan the disposition of matters other than his or her estate cannot direct, among other things, the disposition of his or her dead body.

Waive Bond

Under descent and distribution, a person who wants to plan the disposition of his or her estate cannot waive the requirement of having his or her personal representative obtaining a fiduciary bond.

Some of the Advantages of Making a Will

All of the disadvantages of descent and distribution related to the inability to add provisions beyond the default plan 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.