If random, unavoidable death weren’t bad enough, there’s the people who get fair warning: I know this accountant who was in a plane that crash landed on a runway, surrounded by fire trucks. He survived the crash, as did the rest of the passengers, but before he jumped on the escape chute he went back up the aisle for his carry-on, flight attendants screaming at him all the way. He barely made it off in time. When I asked what was in his bag, he admitted it was just dirty laundry, a pair of gym shoes and a half-eaten sack lunch. 

Then there’s the phenomena of people with money and power, who take crazy risks because they think that with their stature comes a suspension of the basic laws of physics. Private airplane pilots are some of the worst: I recall one such crash victim who had multiple funerals over the years, as picnickers located his assorted body parts, spread around in different rural hamlets.  

These last two folks are Death Deniers—grown adults who nonetheless think they’re never going to die.

People like this are my biggest headache. Not just because they’re pretty silly—they’re all gonna die—but because there’s a symptom that comes with this phenomenon, an attitude I call, “God will balance my checkbook.” Put another way, Americans generally don’t do anything to plan for death, and as a consequence, their loved ones need to deal with their screwed-up estates after they’re gone. Me, I need to charge legal fees to their estates for mopping up these messes, and the families hate it. As one disgruntled survivor said: “I’d like to dig him up and kill him again.”

This condition, what I call the Immortality Fallacy, may not be the only reason over half the adults in this country die with no wills and their lives in complete disarray, but I suspect it’s the grand prize winner. Maybe another reason unplanned death is so common is that many of the perps are unsophisticated, don’t get the legalities behind wills and estates and are just screw-up’s who don’t have their acts together. Sound like a reasonable assumption?

Suppose there’s this guy, a well-connected, Been-Around-the-World kind of guy, but his personal finances are a mess. He’s got loans out to a bunch of deadbeats who haven’t paid him in years, owns real estate spread out in several states, some of it with no-rent squatters on it and the guy hasn’t cashed a paycheck in months. He’s got a spouse he knows may be profoundly disabled, who can’t handle money and his kids are not yet ready to so much as open a bank account. His business has been in shambles for years, he knows better, and yet he hasn’t got a will and he’s going to die with nobody lined up to manage his jumbled mess of an estate.  One more thing: Suppose this guy is himself a lawyer, somebody who once drafted wills for clients. 

Wow, you’d think this guy must be a helpless putz, somebody who really needs to get his act together. Sounds right, except that what I’m describing comes straight out of the Report of Administration for the Decedent’s Estate of Abraham Lincoln, the most revered President of the United States, a man who steered the country through its most deadly war and freed the slaves. The hands-down greatest public figure in United States history died without a will and with a messed-up estate that took years to straighten out. And it wasn’t like he was a young man—Lincoln was fifty-six. While it may be no fair picking on an assassination victim for not having a will, Lincoln was, and remains, in good company. Most Americans are in exactly the same boat.

Perhaps it’s emotional, superstitious hang ups about going to see a lawyer: When I was a kid, my Italian Grandmother used to carry a bunch of savings account passbooks in a shopping bag she hauled around everywhere. She had discrete, handwritten notes rubber-banded to those passbooks, spelling out who was supposed to get each account at her death. When I asked her why she didn’t just go see our neighborhood lawyer and do it right, she’d shake her head emphatically and say, “When you go to the lawyer, that’s when you’re gonna die.”

Seems like not much has changed since then. Why is this such a big deal? Because, dead people can’t own stuff.

The dead can’t legally own property, so every county in every state has a probate court that takes control of dead people’s cars and money and houses, and the court hands it all around after you die. When you make no plans and die without a will, the court hands out all that property to a bunch of randomly-selected winners, sort of like the Lottery, although, in fairness, it’s a little less random. Musical chairs is more like it, where your death is when the music stops. That’s our first defined term, Intestacy, what happens to your property when you die without a will. It’s the state law that probate courts follow when they hand around your stuff to your close or in some cases distant relatives, if you have no will. The opposite, you choosing who-gets-what by signing a will, is called Testation. 

I’d argue that capitalism and the pursuit of accumulated wealth are almost meaningless, a life-long marathon run on a hamster wheel, if after working, striving and saving for decades you’re going to die without a will. Do that, and you let chance, fate and the thoughtless pseudo-will your home state intestacy law has drafted for you, decide what happens to everything you own.

You shouldn’t take for granted the ability to give your stuff away at death: For centuries, the European ancestors of many Americans weren’t allowed to own anything. That was the privilege of the Crown. People who were willing to kiss Crown fanny and die for the King, were the only ones allowed to own some of the King’s property. Even then, though, Inheritance, the right to receive that property at death, was fixed by the King—he got to choose, and by law, he chose only men. 

Here in America, we weren’t much better. It was only about a decade before women got the right to vote that married women were finally “allowed” (by the men) to own property. States enacted so-called “Married Women’s Property Acts,” so a woman’s property no longer simply became property owned by their husbands, when they married. It‘s only been since the early 1900’s that all Americans were first entitled to draw up wills and leave their property to anybody they desired. Divisibility, the system where property gets freed up from dead-peoples’ hands and passed around at death, became a cornerstone of the legal fabric in America. It would be a stretch to say people fought and died for this right, but it didn’t come easy, either. 

Now, you get this really important choice about who will someday own all your stuff after you’re gone, but to make that choice, you need to do something. And, the choices are virtually unlimited when you make a will. In every state but Louisiana, you can choose to give your property to anybody, and to Dis-inherit anybody, the act of over-riding those state intestacy statutes with your own choices. That includes dis-inheriting your kids and even your spouse, although dis-inheriting spouses takes some extra effort in many states, and only works for half of your property in Community Property states, which are primarily most of the West and Southwest. 

How can I be so sure folks aren’t consciously choosing Intestacy, gleefully letting the state pick their beneficiaries? I’ve drafted over a thousand wills and trusts over the forty-two years I’ve practiced law, and during that time, not a single person I’ve seen has chosen to leave their property to the folks listed in the intestacy statute, in just the way the State does it. Why is that? Well, for one thing, Intestacy means outright ownership handed out among spouses and kids, and in many States spouses don’t get it all, even if the kids are babies—those babies still get handed a check, which, as you can imagine, is a nightmare. If you’re not survived by spouses and kids, your stuff gets spread around parents, siblings, nieces and nephews, again in outright fractional shares. No safeguarding the dough from drunks or drug-addled relatives—they just get handed a check, too.

And, if you don’t have close relatives, the Intestacy laws go back up your family tree to grandparents and great-grandparents, who are almost always dead, so your property goes back down the family tree and gets sprinkled on folks like second and third cousins twice removed, almost certainly people you’ve never met and probably nobody you’d choose to get everything you’ve ever owned. Most people without immediate family would pick friends, an alma mater or favorite charities, but no intestacy statute includes any of those beneficiaries. Intestacy statutes were first dreamed up over a hundred years ago, when America was primarily a giant farm-belt. Those farmers and their cigar-chomping buddies in the law-drafting State Legislatures wanted their land to stay in the family. 

To make matters worse, in most states, if you die Intestate and you’ve got no relatives left on the planet, the local County Board where you lived decides how to spend your dough. I’m sure your neighborhood County Sheriffs’ Deputies are swell people, but did you ever figure on working your entire life, just to give them everything you own? 

So, if dying Intestate, leaving your choices to the state legislature, is such a wrong-headed, bone-headed non-choice of a choice, you’d figure that almost nobody would make such a mistake, right?

Well, no. The percentage of people who do this is staggering. The majority of Americans who die each year, don’t do any planning. That’s right: Of the almost three million people that die in the U.S. each year, anywhere from 50% to 60%, in a given year, have no will and have done no post-death planning. That sounds a little abstract, so let’s unpack it: Almost 1,600,000 people, on average, die every year in the U.S. without having lifted a finger to decide who gets their stuff. Roughly 80% of them, 1,300,000, lived above the poverty level and have up to or over a million dollars to hand around at death. It’s as though the entire population of Dallas Texas, or the combined populations of Seattle and Milwaukee, died each and every year, with enough money to care but no will and no post-death planning. It’s like the entire, combined populations of Iceland, the Bahamas and Luxembourg……well, you get the idea.

That many people can’t all be wrong for the same reason. Maybe it’s not all based on a delusional belief in immortality. Perhaps it’s the other well-worn excuse: It costs too much; lawyers are too expensive; I’ve worked hard for this money, and I’ll be damned if I’m going to spend it on some lawyer.  While you hear that a lot in my business, Howard Hughes, Picasso, Prince and Aretha Franklin all died without valid, lawyer-drafted wills and all of them were zillionaires, so each of them probably could have sprung for the legal fees they would have spent. 

Trying to psychoanalyze half the U.S.A. is exhausting, so let me resort to scare tactics. Not convinced it’s more important to go see your probate lawyer than whistle past the graveyard? Before I de-mystify this process, and tell you everything a non-lawyer needs to know about it, let me motivate you. Here’s the first of twenty-three case studies I’ll use to try to teach you a lesson. Practicing probate law for over forty years, you see a lot of bad and just plain foolish behavior. While none of these case studies describe my clients, still, I’ve changed the names, occupations and other identifying details in these scenarios, just to protect the innocent and the not-so-innocent. The bad decisions, non-decisions and screw-ups, however, are real. I’ll call this one:

How ‘Bout Working Your Whole Life Just to Support the East German Secret Police? 

About forty years ago, a young lawyer got appointed by a probate judge to go find a dead guy’s missing heirs. Dead guy, we’ll call him Schmitz, had no will, but he did have a couple million dollars. He’d never married or had kids, and like a lot of folks in his generation, he’d come over to America in the pre-World War II wave of immigration, so his more distant relatives were still in Europe. He died before the fall of Communist Eastern Europe, so when the lawyer hired an Heir Chaser, a private detective who specializes in finding missing relatives, the Chaser had to go fishing behind the so-called Iron Curtain, in what were then the Communist-Bloc countries.

The Heir Chaser followed a trail that led him to a bunch of small country churches in what was then East Germany, looking for birth registries. It turned out that Franz Schmitzenmeyer, the name we’ll give the missing heir, was a distant second cousin, twice removed, who was a disgraced member of the East German Secret Police, sitting in a jail cell on the wrong side of the Berlin Wall. Keep in mind, East German Secret Police were generally not nice people, so being a disgraced member was a lot like being a too-aggressive linebacker in the NFL—you really had to work at that. 

When the lawyer told Schmitz’s best friend (who, of course, wasn’t getting anything) about the incarcerated hitman who would receive Schmitz’s intestate booty, he belly-ached at length about how Schmitz hated Communists and would have wanted his local parish church to get the money, etcetera, etcetera. One more thing: Because they were all still Communists, and with Schmitzenmeyer being disgraced and all, the East Germans ended up confiscating the couple million dollars the lawyer had to deliver to Franz, sitting in his jail cell. But, hey, what’s so bad about working your whole life, just to support a totalitarian Communist regime that goes against everything you’ve ever cared about? That’s Intestacy.

There: Hopefully, I’ve convinced you that forgoing adequate death planning legal representation and dying without a will are irrational, self-defeating acts. 

Now, what else are you doing wrong?