If you have never signed a will or trust, you still have an estate plan. Some of you may be asking, “How?” The answer is the state has a “default estate plan” for those without their own.
In Utah (as in many states), if you die without an estate plan, the law provides that your entire estate will be distributed to your spouse if he or she is alive unless you have children from a prior marriage. If you do not have a surviving spouse, the estate will be distributed to your children and if a child predeceases you, then to that child’s children. If you have no surviving children or grandchildren (commonly called your “issue”), then your estate will be distributed to other relatives. If you have a surviving spouse and children from a prior marriage, a certain amount is distributed to your surviving spouse and then one-half of the balance of your estate will be distributed to your surviving spouse and one-half to your children.
Although the state “default estate plan” attempts to represent what most people would want to do with their estate if they had done their own estate planning, it may not be what you want. There are many concerns about relying on the state’s “default estate plan.”
If you rely on the state’s “default estate plan,” your desires may not be met when you have children from a prior marriage. As previously stated, the state’s “default estate plan” provides that one-half of your estate will go to children from a prior marriage and the other one-half to your surviving spouse. Often, it may be desirable to allow the surviving spouse to have a lifetime interest in all or a part of your estate until his or her death and at that time the estate could be distributed to your children. Additionally, if you marry later in life, you may desire that all your assets be distributed to your children from a prior marriage because your surviving spouse has sufficient assets of his or her own.
Hopefully, you can see that although we may all have an estate plan, it is very beneficial and sometimes crucial that you take the time and effort to develop your own estate plan and not rely on the “default estate plan” established by the state legislature.
Jeffery J. McKenna is a local attorney serving clients in Nevada, Arizona and Utah. He is a shareholder at the law firm of Barney McKenna & Olmstead, PC, with offices in Mesquite and St. George. If you have questions you would like addressed in these articles, you can contact him at (435) 628-1711 or jmckenna@barney-mckenna.com.