At the age of 34, Aaron Carter, musician and teenage heartthrob of the 1990s, has reportedly passed away without a Will. What does this mean for his loved ones and family members, including his brother, Backstreet Boy Nick Carter? He is survived by a fiancée, but not a surviving spouse. What inheritance rights, if any, will she have?
If you pass away without a Will, the way in which your estate is distributed depends on the state’s intestacy laws where you lived. In Carter’s case, his estate is now under the control of the state of California and will be divided pursuant to California intestacy law.
Without a Will, the intestate succession laws, which vary from state to state, determine how your assets will be distributed. For example, in New York State, $50,000 plus one-half of your assets will be distributed to your spouse, with the rest of your assets passing to your children, even if they are minors. This is not what most people want, particularly if your children will receive those monies at the age of 18. If you do not have a spouse, your entire estate will pass to your surviving children. If you do not have a spouse or children, your estate will pass to your surviving parent(s), followed by your siblings if your parents have predeceased you. As you can see, grandchildren and nieces and nephews will never inherit under the laws of intestacy. Only a Will can provide an inheritance or bequest for those family members.
Even without a Will, your heirs will still need to go before the probate court. In this case, they will need to bring an administration proceeding to the Surrogate’s Court to proceed with the handling of your estate, including the collection of your assets, the payment of your final bills, and the distribution of your estate pursuant to the laws of intestacy. Assets that will pass outside of the Court’s jurisdiction and the Court’s oversight are retirement accounts if a beneficiary is named, property held in a living trust, and property held in a joint tenancy or as joint tenants with rights of survivorship. Certain real estate may pass outright as well, depending on how the deed is titled.
Every competent adult should execute a Last Will and Testament. This legal document determines how your estate will be distributed upon your death. It keeps decision-making in your hands, where it belongs, allowing you to dispose of your assets to whom and in whatever manner you see fit.
In addition, people over the age of 18 should have Advance Directives, namely, a Power of Attorney, Health Care Proxy, and Living Will. A Power of Attorney is a legal document wherein you name an agent(s) to handle your financial affairs, such as banking, real estate transactions, asset protection planning, and more should you become unable to do so yourself.
A Health Care Proxy is a document wherein you designate someone to make medical decisions and communicate with medical providers on your behalf should you be unable to do so. A healthcare agent can only make decisions for you once a doctor has determined that you can no longer make those decisions yourself. Your Health Care Proxy should contain a HIPAA release allowing your Health Care Agent to have access to your medical records.
A Living Will is a document wherein you state your wishes regarding end-of-life care, such as artificial nutrition and hydration, pain management, and administration of CPR. By stating your wishes in this document, your loved ones do not need to make these extremely difficult decisions. Instead, they must honor your wishes.
Estate planning is critical at every age but it is also important not to “set it and forget it”. Your estate plan should be reviewed every 5 years, sooner if you retire or are contemplating retirement, if there are changes in your or your spouse/partner’s health or if there are changes to your family composition such as deaths, births, divorces, or significant changes to asset levels (other than typical market fluctuations). And keep in mind that one size does not fit all; there are many case-specific issues that affect estate and asset protection planning. Only an experienced Elder Law attorney can properly analyze each situation and make the best recommendations.
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