Case Study: How the Absence of a Will Can Negatively Impact Your Family

Dec 7, 2021
Wills / Power of Attorney

Unfortunately, many people don’t think they need to make a last will and testament. They may think they’re too young or that they haven’t accumulated sufficient wealth to make a will necessary. If you are one of these people, you may wish to reconsider your ideas, especially after reading the following case study that exemplifies the problems the lack of a will can cause.

Death of a Remarried California Father

There was a father from California who had remarried and failed to make a will before he passed away. This triggered California’s intestacy laws, i.e., the laws that apply when someone dies without having made a will.

Given that California is a community property state, the second wife was already entitled to the remaining half of the marital property she and her deceased husband  accumulated during their marriage. Under California’s intestacy laws, she was also entitled to one-third of the decedent’s intestate estate, i.e., his probate estate consisting of his nonmarital property. This left only two-thirds of the nonmarital property (a mere 33% of the overall estate) to be divided among his children, whether from his first or second marriage. Needless to say, his children were not happy, especially those from his first marriage. But there was nothing they could do.

Furthermore, the stepmother had every right to make her own will leaving everything to her children, thereby disinheriting the father’s children from his first marriage from the majority of their father’s substantial assets that he’d accumulated over the years since their respective births.

Problems Associated with Old Wills

Even if the father had made a will during his first marriage, if he failed to update it after his remarriage, problems such as the following would still arise after his death:

  • Bequests to “my wife” obviously meant his wife at the time. Now, however, they mean his second wife, regardless of whether or not he still intended to leave his first wife something.
  • Bequests to “my children” obviously meant the children living at the time he wrote the will. Now, however, they mean all of his children, whenever born or adopted.
  • Specific bequests he made to a specific child are now in limbo if that child predeceased him.

Oral Promises

Keep in mind that the oral promises someone makes during his or her lifetime to leave specific items to specific people mean nothing when he or she dies. This applies both where a will exists and where it doesn’t. In our case study, if the father, for instance, orally promised his first son that he would inherit the father’s collection of tools, the stepmother now has the right to dispose of these tools as she sees fit. Depending on the relationship she has with her husband’s oldest son by his first marriage, this son may or may not receive the tools, even if he advises his stepmother of his father’s oral promise.

How to Avoid These Problems

If you’ve never made a last will and testament, or if you have failed to update your will after a life-changing event such as a remarriage or the birth or adoption of additional children, AmeriEstate Legal Plan can help you remedy this situation. We can help you with whatever estate planning needs you have, however complicated.

To date, over 40,000 families have put their trust in AmeriiEstate. Contact us today so we can begin helping you, too.