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Heir Apparent? Apparently Not.

Some time ago, a client presented her deceased husband’s will to me. Unfortunately, based on erroneous advice from a non-attorney, the will wasn’t properly witnessed and the court consequently declared it invalid. That ultimately meant that the State rather than the husband got to decide where his assets should go.

That begs the question: What happens to my property when I die if I don’t have proper estate planning? The answer: If a person dies without proper planning (e.g., a will or trust), the succession laws of the state where the property is located determine how and to whom the property is distributed. For example:

Community Property. When one spouse dies, the couple’s community property is split in two, with half going to the surviving spouse and the other half to the deceased spouse. However, absent a valid estate plan, the deceased spouse’s share passes to and becomes the surviving spouse’s sole and separate property.

Separate Property. A person’s separate property is distributed based on family status at the time of death. For instance, under Nevada law: (1) if the decedent is married and has one child, half will pass to the spouse and half to the child; (2) if the decedent is married and has no children, half will pass to the spouse, one-fourth to the decedent’s father, and one-fourth to the decedent’s mother; (3) if the decedent isn’t married and has no children or parents, her separate property will pass to her siblings in equal shares; and (4) if the decedent has no family, his property will pass to the State.

Notice that the law doesn’t provide for close friends or dating relationships and may even exclude children from prior marriages. To ensure that your desires, and not the State’s, will be fulfilled, don’t leave matters to chance. Seek assistance from an experienced attorney when preparing your estate plan.

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