While there are few, if any, advantages of dying intestate, there are a host of disadvantages:
- Rigidity of State Law:
In the absence of a will, state law specifies to whom property is to be distributed, and in what proportions. Intestacy laws are inherently inflexible. Far too often the family suffers unnecessary economic hardship.
- Surviving Spouse's Share:
Depending upon state law and the family members who survive, a surviving spouse may receive only a fraction of the decedent's estate. In many cases, a surviving spouse's share is entirely inadequate for future security, forcing a drop in the surviving spouse's standard of living.
- Outright Distribution to Children:
Children take their property interests outright. Age, needs, and degrees of responsibility are ignored. Where a minor is involved, a guardian must be appointed, and the child's share becomes subject to the supervision and rules of the local court. When the child reaches the age of majority, the guardianship ends and the property must be paid over to the child, regardless of his or her experience or degree of judgment in financial matters.
- Forgotten Persons or Charities:
Certain persons who the intestate decedent might have wished to benefit are excluded, such as a daughter-in-law or needy relative. Likewise, charitable bequests are not possible with intestate succession.
- Specific Property:
Since intestacy requires outright distribution, the value of a specific asset may be jeopardized. For example, it may be necessary to distribute a specific piece of real estate to a wife and children in fractional shares; if the children are minors, future complications may arise regarding the sale or lease of the property. If a business interest is involved, intestacy may prompt the liquidation of the business, or force a division of the interest into two or more shares.
- Tax Disadvantages:
In the moderate or large estate, intestacy may result in higher taxes. Under intestacy, a fixed percentage of the property passes to the surviving spouse. This may totally ignore the possible use of the marital deduction.
- Powers of an Administrator:
By will, an individual can designate an executor of his or her own choice, whether a person or trust institution. In the absence of a will, however, the law provides for the appointment of an administrator. An administrator's power and authority in settling an estate is limited by state law, and subject to strict court supervision.
