When a person dies intestate (without making and leaving a will), each state provides a default plan (usually known as the statute of descent and distribution), under which his or her net estate is disposed. When a person dies intestate, there is no changing the default plan. The default plan's sequences for determining who inherits and how much cannot be changed. This article discusses the disadvantages of descent and distribution related to that inability to change who inherits and how much.

Division of the Estate

Under descent and distribution, a person who wants to plan the disposition of his or her estate cannot have any item of property transferred separately from the rest of his or her property to any particular person or group. For example, a person cannot leave a particularly sentimental item of property, such as a wedding ring, to a particular person apart from the rest of his or her property. Moreover, a person cannot give joint ownership of his or her property to a group of people.

Who Inherits

Under descent and distribution, a person who wants to plan the disposition of his or her estate cannot disinherit an expectant heir or prospective heir or disinherit a spouse to the extent permitted by law.

Under descent and distribution, a person who wants to plan the disposition of his or her estate cannot favor one person in the same class over another. For example, a parent who has four children, three of whom have been blessed with good fortune and one of whom has not, cannot favor the unfortunate child over the fortunate children. Similarly, a person cannot transfer his or her property to both a child and the child's children at the same time.

In short, under descent and distribution, a person who wants to plan the disposition of his or her estate cannot transfer property to his or her "family" as he or she defines the term "family."

How Much Is Inherited

Under descent and distribution, a person who wants to plan the disposition of his or her estate cannot establish exactly how much is inherited by each heir. He or she also cannot index the amount inherited to some other measure, such as the heir's age or youthfulness.

Some of the Advantages of Making a Will

All of the disadvantages of descent and distribution related to the inability to change who inherits and how much can be overcome by making a will. To overcome the disadvantages of descent and distribution, have your lawyer prepare a will (and any other estate planning documents) for you.

Copyright 2012 LexisNexis, a division of Reed Elsevier Inc.