What Happens If You Don’t Have a Will?

If you die without a Will, there are some serious implications, but the most important one is that state law determines how property is distributed.   If you have a Will, you can leave your property to any one you choose – your spouse, your children, your church, a charity, etc. If you do not have a Will, South Carolina law determines who will receive your property.  This law is known as the “Intestacy Statute.”  Most of our clients believe that even without a Will, their assets will simply go to their spouse.  That is not true in South Carolina. The Intestacy Statute says that if you die without a Will and are married with children, your assets are divided so that 50% goes to your spouse and 50% to your children.  This can cause quite a mess, especially if you have a spouse and children who may not get along. Imagine owning your home with your children or stepchildren. Who is responsible for paying the mortgage?  Who pays the taxes?  Often, this can lead to costly litigation.

A real example of this issue happened to one of our clients. Mr. and Mrs. Smith got married.  They were both in their late 40’s, and they both had children from previous relationships.  Mrs. Smith sold her home and moved in with Mr. Smith.  About two years after their marriage, Mr. Smith died suddenly from a heart attack.  He did not have a Will.  The South Carolina Intestacy Statute said that Mrs. Smith received 50% of Mr. Smith’s assets and his children received the other 50%.  Mr. Smith only had one child; he had a son who was a criminal and had never worked an honest day in his life.  Mr. Smith was estranged from his son and had not spoken to him in years.  Mr. Smith’s son was in jail at the time of Mr. Smith’s death, but he still inherited half of his father’s estate, including a half interest in Mr. Smith’s house.  When the son was released from jail, he decided to move in to the house that he now partly owned.  Mrs. Smith could not tolerate living with the son.  She basically gave up her half of the house and moved away.  Would Mr. Smith have wanted his son to receive half of his house?  Probably not, but Mr. Smith did not plan appropriately.  Do not let this happen to your family.  A Will is a fairly inexpensive document that can save your family a lot of stress and money after your death.