President Abraham Lincoln, Jimi Hendrix, Bob Marley, James Brown, Prince, and most recently Aretha Franklin. These are just a few of many famous people who died without creating a will. Probate disputes can be long and contentious battles. This is even more true when there is no will spelling out the decedent’s wishes with regard to their property and assets. Jimi Hendrix’s estate was still being litigated almost four decades after his death. Bob Marley’s estate is a similar story: a 30-year dispute over his estate, including the rights to exclusive use of his name, likeness and image.
A person who dies without an estate plan, such as a will or a trust, is considered to have died “intestate”. Each individual state has its own set of laws directing how the assets of a person who dies without a will should be distributed. Often these rules are not what one might imagine and not what a person would have chosen for themselves. For example, in Michigan, a surviving spouse may only be entitled to receive part of the decedent’s estate whereas the decedent, if they’d had a will, might have intended that all his or her assets go to his surviving spouse. Let’s take a look at what this might look like.
Illustration 1: Husband dies without a will. He leaves behind a wife and two children, both of whom are also the wife’s children. Husband’s estate is worth $300,000. His surviving wife, under Michigan’s intestacy statute, is only entitled to the first $150,000 of the estate, plus ½ of the remaining estate. She would take $225,000 of her husband’s estate. The remaining $75,000 would go equally to his two children.
This is a fairly simple example of how intestate succession works. But what happens if there is no surviving spouse or children? This is what happened with Jimi Hendrix’s estate. When Hendrix died in 1970, the intestate succession laws of his state directed that everything go to his father, Al. When Al died, Jimi’s brother Leon likely should have inherited what remained of the estate, however, Jimi’s stepsister Janie took over management of the estate and property that Al inherited. What followed was a decades long litigation between Leon and Janie over Hendrix’s estate. If Hendrix had a will the likelihood of this happening would have been greatly reduced.
Another concern about intestate succession is what happens when the surviving children are minors. An example is a case I worked on prior to moving to Michigan. In Arkansas, a surviving spouse is only entitled to a life estate in one-third (1/3) of the estate and the remaining two-thirds (2/3) go to the children of the decedent. Our client was a young mother whose husband had died in a car accident at a fairly young age. She was left a widow with a two-year old son. Instead of receiving his entire estate, under Arkansas law she was only entitled to one-third of it, while her two-year old son, received two-thirds of it. Due to his being a minor, the court required the mother to set up a guardianship for her son, and a trustee was appointed to handle distributions of the funds for the son’s benefit. Now through the guardianship case, the mother and trustee will have to report to the court until the boy reaches majority. By setting up a will, a person can designate who should be the guardian of any minor children, who should receive his or her property, and who should be executor of the estate. All these things would make administering a probate a lot easier than under intestate successor laws.
So why do so many people resist preparing a will? According to Gallup, in 2016 only 44% of adults in the United States had a will. A fear of talking about death is one big reason for this kind of procrastination. Yet think about what kind of legacy you are leaving for your heirs. Isn’t it a better idea to leave them with a clear, written plan of how you want your property to be divided instead of leaving it to an impersonal state statute? It will certainly give you and your family peace of mind to know your affairs have been taken care of, so you can get back to living life and enjoying every moment of it.
Get started with your estate planning today!
 Lindhorst & Dreidame Co., L.P.A., Decades After His Death, Jimi Hendrix Estate Still in Litigation, (April 3, 2017). http://www.lindhorstlaw.com/blog/2017/04/decades-after-his-death-jimi-hendrix-estate-still-in-litigation.shtml
 Danielle and Andy Mayoras, Are Bob Marley’s Heirs Destroying His Legacy? (December 5, 2011). https://www.forbes.com/sites/trialandheirs/2011/12/05/are-bob-marley-heirs-destroying-his-legacy/#247406e552a5
 Jeffrey M. Jones, Majority in U.S. Do Not Have a Will. (May 18, 2016). https://news.gallup.com/poll/191651/majority-not.aspx
Jessica Brandow is foremost an estate planning attorney dedicated to providing quality legal service to all types of clients.