If you’re an unmarried dog parent, who’s going to get Fido (and your assets)?
For the second installment of the WYNAW series, I’m starting the simplest example: what happens if you die without a will when you are single with no children. Unfortunately, it’s really not all that simple. In my last post, I explained intestate succession and “per stirpes.” This post covers some of the common issues that arise in most intestate estates and future posts will build on the issues discussed below.
One Surviving Parent
If you die survived by only one parent, everything will pass to that parent and he or she will have priority to be appointed as the administrator of your estate. Sounds easy, but what if your surviving parent is disabled and does not leave the house or has dementia and lacks capacity to act. Maybe you have a sibling or family friend who is willing to serve. That’s nice of them, but your parent is still going to need to sign some paperwork to let that person be appointed by the court and to avoid the costs of additional reporting and insurance bonds.
Unfortunately, you can’t waive bond if an heir lacks capacity, so if the parent suffers from dementia, the administrator will still have to post a bond with the court even if that person is the parent’s power of attorney. These bonds are similar to a bail bond but obtained through an insurance company, the administrator must pay a certain portion of the bond upfront and provide various personal and financial information to the bond company for approval. That money can normally be reimbursed during the administration of the estate, but it has to come from somewhere before your assets can even be administered. Guess what? If you wrote a will and appointed someone to administer your estate, you could have waived that bond expense.
After the administrator has rounded up all your assets, paid your bills, and paid the costs of administration, including fees to the court, attorney fees, and compensation to the administrator, if your parent is incapacitated, we have to seek out a court supervised conservator to manage those assets for your parent. So, the time and fees just keep ticking up. If you had written a will, you could have set up a contingent trust for your parent to avoid all this time and expense.
Two Surviving Parents
If both of your parents survive you, everything will be divided equally between them. They also both have priority to be appointed as administrator. If your parents get along, that might not be so bad. Just remember that all of the issues above still apply, even if your parents are married. So, if your mother has Alzheimer’s disease and your father is her caretaker, he still has to jump through all of the above hoops in addition to everything else.
Since half of the population is divorced, things can get pretty messy even if everyone is competent. Who is going to want to serve as administrator? Are they both going to want to serve and if so can they work together? If they can’t work together or agree on having a third party serve, the court may appoint an independent administrator (read: lawyer) who will have to pay to be paid to administer the estate. Hopefully, they can agree on how to divide your assets and the price to your assets to others, but I wouldn’t count on it.
No Surviving Parents
If neither of your parents survive you, your siblings are next in line. If you have only one sibling and he or she survives you and is competent, that’s probably not so bad. However, if you have multiple siblings, the same issues are present that are present with two parents. Based on most of the families I know, siblings arguing over who should be in charge, who isn’t carrying their weight, and who gets what is pretty normal. Even if everyone is in agreement, all the siblings still have to sign documents waiving the above requirements and agreeing as to who is going to administer the estate. What if a sibling is deceased but left minor children, those minor nieces and nephews are now heirs of the estate? That involves another set of issues that will be discussed in the next post.
Andrea Anderson is based in the firm’s Knoxville office. Estate Planning, Probate, and Trust Administration are Andi’s primary focus, and her practice routinely includes federal and state taxation, business formation, and charitable organizations ranging from formation and operations to dissolution. Andi started her career working in a boutique estate planning law firm where she developed her skills in drafting and implementing estate plans and advising clients on how to achieve their planning goals in a tax efficient manner.
Ms. Anderson served as president of Phi Alpha Delta legal fraternity while attending The University of Tennessee College of Law and received special orders from the IRS to practice as a student attorney in the Legal Aid Society of Middle Tennessee and the Cumberland’s Low Income Taxpayer Clinic, where she represented clients in tax controversy matters.