The consequences of dying without a will are made clear by actor Anne Heche's heartbreaking situation.
Her story shows us that having an estate plan is essential for more reasons than simply stating who you want to inherit your property. If you die without naming an executor or a legal guardian for your children, complications and family disputes are likely to arise.
Heche joined a long list of famous people who died without a will. She tragically passed away at age 53 from injuries sustained in a car crash. She was survived by her two sons - 20-year-old Homer Laffoon, Heche's son with her ex-husband Coleman Laffoon, and 13-year-old Atlas Tupper, Heche's son with former partner James Tupper.
Soon after her death, her name made headlines again when complications with the administration of her intestate estate arose.
Interestingly, the issues have not involved the distribution or valuation of her assets but who the court will appoint as the administrator of her estate and guardian of her minor son. Her 20-year-old son, Homer, petitioned the court to be appointed as the administrator of her estate.
He also filed a petition asking the judge to appoint someone to represent his younger brother's interests in court, despite the fact that his father is still living. Because Heche died without a will or estate plan, the administration of her estate got complicated quickly and attracted public scrutiny more than it needed to be.
Her unfortunate situation is a cautionary tale to the millions of Americans who do not have a will.
When do intestacy rules apply?
Because Heche died without a will, she is said to have died intestate. When a person dies intestate (without a valid will), their estate goes through the probate court.
The state's intestacy laws determine who will inherit the decedent's assets, who will serve as the estate administrator and who will become the guardians of minor children. Heche was a California resident, so California's intestate rules apply.
Who is the administrator of an intestate estate?
When you create a will, you name an executor (also called a personal representative), the individual responsible for overseeing the administration of the will.
The executor has various responsibilities, including locating, collecting and valuing the deceased's property; notifying creditors; paying debts and taxes; and distributing the property to the beneficiaries. Executors should be trustworthy, organized and responsible.
If there is no will, the probate court will appoint an administrator to assume this role. Every state has a law that sets an order of priority for the judge to follow when appointing the estate administrator. For example, the list of priority in California is:
- Surviving spouse
- Children
- Grandchild
- Other issue
- Parents
- Brothers and sisters
- Nieces and nephews
- Grandparents
- Aunts and uncles
- Children of a predeceased spouse or domestic partner
- Issue of parents of a predeceased spouse or domestic partner
- Conservator or guardian of the estate acting in that capacity at the time of death who has filed a first account and is not acting as conservator or guardian for any other person
- Public administrator
- Creditors
- Any other person
Under California law, the guardian or conservator of a person otherwise entitled to appointment can be named administrator. If a person otherwise permitted to be appointed administrator is a minor, the court can use its discretion to select someone else.
If several people of equal priority ask the court to be appointed, the court can pick one of them or a disinterested person in the same or lower class.
In the case of Heche, her 20-year old son, Homer, petitioned in the Los Angeles Superior Court to be the administrator of the estate. He and his younger brother, Atlas, have priority to serve as the administrator. However, because Atlas is a minor, he will not be qualified to serve.
The situation become even more complicated after Atlas' father, James Tupper, objected and petitioned the court to appoint a neutral, third-party private professional - or himself - to serve as administrator. Tupper and Heche were never married.
In a subsequent public hearing, a judge denied Tupper's petition to be named Atlas' guardian ad litem and indicated he was inclined to appoint Homer as the estate's administrator.
If Heche had written a will, there is a high probability that she would not have chosen her 20-year-old son to serve as executor. The responsibilities of the role are significant, especially when the estate is complex and high-profile.
As an additional burden, it is possible that the estate will have to defend itself against lawsuits relating to her deadly car crash (she crashed into a house, causing a major fire).
At such a young age, Homer may not have the financial and legal experience to manage the estate effectively. In a will, Heche could have appointed a professional to assume this role.
Who becomes guardian of the children when you die intestate?
When both parents die or otherwise cannot care for their child, the court will appoint a legal guardian based on the child's best interests. The court distinguishes between two types of guardians: “guardian of the person” and “guardian of the property.” The court can name the same person or two separate individuals to fill these roles.
Guardian of the person
The guardian of the person is responsible for the physical care of the minor child. They also make the decisions that would have been entrusted to the parents, such as medical, educational and religious decisions.
Guardian of the property
The guardian of the property (sometimes referred to as the guardian of the estate or conservator) is responsible for managing property left to a minor child. Their duties could include investing assets, paying bills, distributing property to the child and maintaining real property.
The guardian must file accountings and inventories with the court to confirm that they are acting appropriately. The guardianship of the property ends at age 18.
When you write a will, you can appoint someone to be named your child's legal guardian. The probate judge will appoint your designated guardian as long as it is in the child's best interest. If you die intestate, the court will appoint a guardian. Typically, the court will appoint a grandparent or the nearest relative.
Guardian ad litem
In Heche's case, because the father of her minor child is still living, the court does not need to appoint a legal guardian. The older son did ask the court to appoint a third party as guardian ad litem for his younger brother.
A guardian ad litem represents the interests of an incapacitated or minor person if the court determines that representation of their interest would otherwise be inadequate. A guardian ad litem is different from a legal guardian; their role is limited to representing the minor's interests in the legal proceeding.
As was expected, Atlas' father contested Homer's petition seeking to represent his teenage son's interests. If Heche had created an estate plan, it is likely that significant family discord - playing out in the courts and covered by the national media - could have been avoided.
Is the intestacy process public?
An intestate estate goes through probate, and probate records are part of the public record. Once a probate case is opened, anyone can contact the court and ask to see the documents in the case file.
Typically, all a person will need is the last name and date of death of the individual to access these documents. Anyone will be able to see what the deceased owned, what they owed to creditors, and who is inheriting their estate.
You do not need to be a famous actor to want to keep your financial affairs private. Luckily, there are various ways to keep your affairs private when you create an estate plan. You can structure your plan, so your assets pass outside of probate.
What are some non-probate assets?
Examples of non-probate property include trusts, beneficiary accounts, life insurance and jointly owned property.
Additionally, you can include a pour-over will that states that all probate property that passes through the will is transferred to (poured into) your previously established living trust. It acts as a fail-safe for any property that you forgot or were unable to move into your trust before you died.
If Heche had created a comprehensive estate plan, she could have prioritized keeping her estate private and saved her family the heartache of having to see her face and their personal family business splayed across the tabloids and news media.
Can you challenge intestacy rules?
You cannot challenge intestate succession, unlike a will or trust. The deceased's heirs will inherit property according to the rules under their state's intestate laws with no exceptions. Intestate rules are rigid and based on the typical nuclear family.
The outcomes under the intestate laws are often not what the deceased would have wanted. In Heche's case, her children will inherit her estate equally. This outcome cannot be contested.
Who inherits your property if you die intestate?
When you die without a will, your property is distributed to your closest relatives according to your state's intestate laws. Typically, the surviving spouse will get the largest share.
If there is no spouse, the property will pass to the children and then more distant relatives (parents, siblings, aunts and uncles, etc.). Only spouses and blood relatives are recognized under intestate laws.
In Heche's case, both her sons will inherit equally under California law. Homer, the 20-year-old, will inherit his share outright. The court will set up a guardian of the estate to manage the income and property inherited by Atlas until he turns 18. Typically, the court would appoint the surviving parent as guardian of the child's estate.
The value of Heche's estate is estimated to be millions of dollars. At the young age of 20 or 18, few individuals are mature enough to handle this windfall responsibly.
It is likely that if she had created an estate plan, she would have included a trust placing restrictions on the inheritance. For example, she could have authorized payouts at ages 25, 30 and 35.
How long does the intestacy process take?
Simple, uncontested probate cases can be finalized in a few months. However, larger and more complicated intestate estates can take years to settle. The process can be incredibly stressful and expensive.
While the estate is in probate, the heirs have no access to the property. Non-probate property passes immediately at death. It does not have to go through the court-supervised probate process.
If Heche had created an estate plan, she could have created trusts that would have transferred immediately at her death.
What can you take away from Heche's situation?
Anne Heche's situation shows us that an estate plan is critical for more reasons than simply stating who you want to receive your property. In her case, it is very probable that the outcome under the intestate laws - both her children inheriting equally - is what she would have wished. However, complications still arose. An estate plan could have significantly simplified matters for Heche's family during a difficult time of loss.
In an estate plan, you can name an executor and successor trustees - choosing individuals willing and able to assume the role. Furthermore, if you have minor children, you can designate a legal guardian. You know your child and family values best.
If you die intestate, the court may name an individual you may not have chosen. Dying without an estate plan almost always makes the administration process more difficult than it could have been.
Anne Heche's story also reminds us that accidents can happen to anyone. She was a healthy 53-year-old. You are never too young or healthy to have an estate plan.
Having an estate plan is a beautiful gift to give your family while they are grieving your loss. It ensures that your wishes are known and properly carried out.