Intestacy means, simply, the state of dying without a will. The majority of people ultimately die intestate, without a will or other estate plan in place, often leaving heirs unclear as to how their loved one’s assets are meant to be distributed.

Similarly, it is common for estate planning practitioners to be contacted by clients who believe they need a will, but may not understand or may misunderstand why. Frequently we hear from new clients that they “want to get a will in place to avoid probate” or “to ensure their wife and children receive their fair share”. 

If these are the only reasons a client is seeking estate planning (and this is a big if, whether they realize it or not), a will by itself may not accomplish anything different from the intestacy statutes of their state – for purposes of our offices, the intestacy statute of Missouri, which sets forth the general, or default, rules of descent for those that die without a will. Different states have different statutes, some of which lead to slightly different outcomes, but the objective of the statute is the same everywhere: it attempts to predict who an ordinary person would want to inherit their assets, to avoid confusion or the need for a will that calls for the exact same distribution the statute does.

The Intestacy Statute

In Missouri, Section 474.010 of the Missouri Revised Statutes controls most questions of intestate inheritance. It calls for distribution as follows:

For a married person without surviving children or descendants, all goes to the spouse.

For a married person with children or descendants all belonging to their spouse, the spouse takes the first $20,000.00 and half of the remainder, with the rest being split equally among the children (or along their lineal lines, if predeceased).

For a married person with children or descendants not all of which belong to their spouse, the spouse takes half of the estate, with the rest being split equally among the children (or along their lineal lines, if predeceased).

For an unmarried person, the entire estate is split equally among the children (or along their lineal lines, if predeceased).

For a person without a spouse or children or descendants, their surviving parents and siblings take in equal shares.

In the event someone is not survived by a spouse, children or children’s descendants, nor their parents and siblings, more remote heirs begin to take: first grandparents, then aunts and uncles, then cousins second or third cousins up to a certain degree of removal.

Finally, if no heirs exist to inherit, the estate escheats to the state of Missouri – an exceedingly rare event given the breadth of potential heirs that are eligible to inherit first.

Estate Planning May Still be Important

If your intended heirs, likely your spouse and then children, are the same as what the intestacy statute calls for, failure to create a will is unlikely to change the ultimate distribution of your assets, and should be easy for your heirs to identify when probating your estate. However, this does not mean it is always prudent to rely on intestacy – there are numerous potential reasons to procure a will and potentially a trust and other documents, even if your intended distribution matches intestacy

Avoiding Probate

Depending on the size of your estate, it may still be worth engaging in estate planning with the goal of avoiding probate, whether through a trust or other types of non-probate transfers, especially if your estate is likely to be over the small estate limit of $40,000.00. While Missouri probate is far from the most painful state probate processes, it is still a process that will take 6 months to a year (or longer), incur various court and legal fees (roughly 4-5% of the estate value is a reasonable minimum estimate), and require substantial effort on the part of your personal representative (sometimes known as an executor in other states). Neither intestacy nor a will by itself will avoid the need for probate.

Naming Personal Representatives and Guardians

The key functions of a will for any estate plan, even a plan that matches intestate distributions, is the nomination of your personal representative and potential guardians for any minor children. Nominating a particular person to serve as your personal representative may avoid any uncertainty or disputes about who should fill the role when the time comes – which may be particularly important if you do not believe your heirs will be able to agree, or if one or more heirs should not, in your opinion, be trusted with the responsibility. If the will indicates as much, it may also avoid the need for court supervision during the probate process, which will likely expedite the process and reduce legal costs of administration. 

For minor children, nominating guardians in a will may have a similar effect of making it clear who you believe should take on the role and providing your nominees with evidence of your support for serving as guardian. While appointment of guardians is not automatic even if a will nominates them, it can help ensure your nominees are ultimately appointed to take care of your minor children after death. 

Controlling Time and Manner of Distributions

It is one thing to know you want your spouse and children to inherit your assets, but may be another to believe they should receive their share all at once, dividing assets equally. Heirs may be minors or otherwise too young to handle large financial assets responsibly, or may have debt or benefits related income limitations that might make receiving a large sum outright inconvenient. Similarly, certain heirs may be better served by having specific, but equally valued, assets distributed to one but not another heir (for example, one may wish to keep a piece of real property while another would prefer the cash value; equal distribution of both is likely to result in the real property being sold through partition). 

A will or, preferably, a trust can call for distributions of specific assets at specific intervals or under specific conditions to avoid these issues for your heirs, ensuring they receive what you intend without causing unintended problems for your heirs. 

Preparing for Incapacity

Arranging for distribution of your assets after death is only one objective of estate planning. Another important objective is to help arrange for your own care during your lifetime, whether due to an emergency that leaves you unable to do so on your own, or due to lapses in capacity that come with age. Powers of Attorney and/or a trust written with this intention in mind can ensure a clear line of decision-making authority with respect to your person and assets during you lifetime, and ensure your assets are used for your care and your wishes are honored even when you can no longer actively make such decisions on your own. Neither relying on intestacy nor creating a will accomplishes these objectives by themselves.