What Happens If You Don’t Have A Will

Speakers: Maritess Bott and Unidentified Off-camera Speaker

Off-camera Speaker:

Hey Maritess, what happens if I don’t have a will?

Maritess:

Hi, I’m Maritess Bott. I’m happy to answer that question. Thank you for watching our podcast or listening to our podcast.

What happens if you don’t have a will? In terms of— I talk a lot about on this podcast about probate. First and foremost, if you don’t have a will, we’re likely to go to probate. We’re likely to have to go to court in order to get your assets distributed.

What I like to share today is even though you might be sitting there saying, “Oh, well, no big deal. I don’t need a will,” or “I don’t care because I’ll be dead anyway,” which is a common thought, I tell people: you have a will, and the state of Illinois has created it for you. Whether you like it or not, that’s up to you. But for the most part, the state of Illinois has laws, and they’re called intestate laws. Basically, if you have nothing written down about your assets, then those are the laws that we have to deal with.

The laws of intestacy say that if you are survived by a spouse and children, the law says 50% goes to the surviving spouse, 50% goes to the surviving children. If you are not even in touch with your children, it doesn’t matter— we’re going to have to give it to them anyway. If one of your kids has a drug addiction, it doesn’t matter— we have to give it to them anyway. If you tell me, “Oh my gosh, why should 50% go to my kids? My spouse needs 100%,” unfortunately, again, we have no choice. It has to be 50% to the surviving spouse, 50% to the surviving children.

If you only have a spouse, it will go to your spouse. If you only have children, it will go to your children in equal shares. That certainly can be a bit of a conflict if you have three kids, all one spouse that you had the kids with.

What I find now is blended families. We have a lot of blended families here, where you’ve married, now you have children, I have children, we have a joint child together. So who does that money go to? It’s always going to be your children that are born or adopted by you. Even though you might think, “I got married 20 years ago, and my new wife’s kids are my kids, I treat them like they’re my kids,” if you never adopted them, they’re not your kids. If you die without a will, they are not considered your kids. It’s only going to go to your biological children or any children you adopted.

Children can be a complicated situation. If you don’t have children or you don’t have a spouse, we’re going to go to siblings and parents in equal shares, which sounds like, “Okay, no big deal, just give it to them.” But this can also cause a problem. One is if your brother Johnny is kind of estranged from you, you haven’t talked to him in years, and you don’t want him to get anything— it won’t matter, because he will get something based on the law.

You might have parents that are alive, but they’re on Medicaid, they live in a nursing home. Well, guess what— now you give them money, and they’re going to get kicked off of Medicaid, and now you’re adding more problems to them, which they really didn’t need. Siblings and parents— you might be okay to give it to them, but if you don’t want to give it to those people, then you certainly want to write a will or a trust that says it goes to other people.

I want to also go to the next layer. The law also says if you have none of those relationships— no spouse, no kids, no siblings, no parents— now we’re going to be looking for your family tree. We are going to create a family tree based on your maternal side of your family and your paternal side of your family. We’re going to go upward to your grandparents and then we’re going to go downward to see who’s alive.

You’re going to think, “How do you know that? How do you do that?” We’re going to do our best with the help of technology through Ancestry or private detectives or anything. I know that seems crazy, but that’s what would have to happen, because somebody has to get this money, and it has to be the natural heirs of you, which you may not even know— these people that end up getting your money. But we’re going to find them and we’re going to say, “You’re entitled to it.”

I did a podcast several months ago regarding a gentleman who lived in Gage Park here in the Chicagoland area— millions of dollars. I didn’t deal with it, it was based on an article that I read. All these different relatives ended up getting his money. Most of them are out of this country, some of them are here in the United States, most of them are in Europe, and many of them don’t speak English. Yet somebody had to figure out where all this money goes, because it’s not just going to be handed to just anyone.

The moral of the story is: write it down. Write down what you want to do with your money. Tell us where it goes. Because for me, I’d rather give it to your favorite charity, your church, your alma mater, your pet charity, or whatever you’re passionate about. I’d rather give it to them than random relatives. It’s important, because if you think, “Oh, it’s no big deal, it’ll just go to my wife, it’ll go to my husband, it’ll go to my kids,” life changes and circumstances change. It’s fine to give it to them and assume the law will take care of it, but don’t leave it to chance.

Don’t leave it to chance, because the likelihood is it’s going to go to people that may not be the intended recipient— or they are the intended recipient, but they are going through some problems that might affect them even more. You think money solves all problems? Not necessarily. If a child is receiving half a million dollars based on you not leaving a will, and that child receives half a million dollars, puts it in their account in their name, a month later they’re in a car accident, and there’s a plaintiff coming after them and saying “wrongful death suit,” somebody died, there’s a judgment of five million dollars against you— that half million that you just gave your child is now jeopardized. It will go to the plaintiff. It will go to somebody who’s suing them.

Is there a way to protect that? Absolutely. If we can make sure everything’s protected. Even though you think, “Oh, my kid will never get sued,” none of us are immune to lawsuits. If you drive, obviously car accidents could be one of them. Perhaps you’re a real estate investor and you have an apartment that you rent and somebody slips and falls— now you’re potentially being sued. There are lots of ways to get sued. It’s not just, “Oh, I’m a doctor who has potential liability.”

I’m just a big fan of protecting, protecting, protecting. Because why give it to somebody accidentally, inadvertently, or anything like that?

That’s generally what happens if you don’t have a will. The state— at least here in Illinois— the state of Illinois has a will for you, created for you. But if you don’t like that will, let’s change that narrative and do something properly. Give us a call, we’ll have that conversation, and make sure everything goes to the right people.

Again, I’m Maritess Bott of Bott & Associates. Please feel free to check out our website or give us a call and set up an appointment. Thanks and have a great day.