Party Over, Oops Out of Time...The Perils of Dying Intestate

I was very saddened to hear of the passing of recording artist Prince on April 21, 2016. As I watched my social media accounts surge with tributes and song lyrics, I allowed myself to reminisce and feel nostalgic about the 1980s. Most recently, I was quite surprised to learn along with the rest of the world, that Prince died without a Will.

If a person dies without a valid Last Will and Testament it is known as dying "intestate." In each state there are laws which dictate how property passes when someone dies without a valid Will. These are commonly referred to as laws of "descent and distribution" and they represent what each legislature imagines is the best "default" plan.

In South Carolina, the probate property of a person dying without a Will passes by statutes of intestacy. For instance, if a South Carolina resident dying without a Will is survived by a spouse and not survived by descendants, the surviving spouse takes all property which would otherwise have passed under the terms of a Will. A South Carolina resident dying without a Will survived by both spouse and children results in all property which would have otherwise passed under the terms of a Will passing one-half to the surviving spouse and one-half amongst the children. A South Carolina resident dying without a Will without a surviving spouse but with surviving children results in such property passing in equal shares amongst the children. Clearly, the disposition outlined above might be appropriate but in many circumstances would not be the plan chosen by the decedent.

In the case of Prince, the media is reporting that his sister has alleged that he died without a spouse, children, or surviving parents, and listed his five half siblings as interested parties. If his estate were subject to South Carolina law, the next level of kin that would inherit would be his siblings or potentially their children (if a sibling had died before Prince).

By all accounts, Prince's estate is substantial. In addition to real property, collections of guitars, pianos, memorabilia, stocks and investments, his estate will also likely contain the rights related to his music, and numerous revenue streams relating to his intellectual property, name and likeness. If history is any indicator, the value of such rights will drastically increase following Prince's death and lead to releases of new music, compilations, greatest hits, videos and memorabilia similar to the Estates of Elvis and Michael Jackson. Movie theatres across the nation are already showing Purple Rain again. Sirius/XM has a tribute channel playing Prince's music and music related to Prince 24 hours a day.

If a person dies intestate, the ownership of their assets may very well be divided amongst several people - this may create real problems. The likelihood for disagreement increases with each additional beneficiary, which results in a more difficult administration and ultimately with any ongoing business activities. The transfer of property in accordance with the statutes of intestacy may create problems which will last for many years - even generations - to come.

A Last Will and Testament is much more than just a direction of how property should pass upon someone's death. A Will is a mechanism by which a person can create trusts, nominate a personal representative, waive the bond for that personal representative, nominate guardians for minor children, and avoid or curtail contested administrations. A probate administration can be a relatively simple process, but it can also be a full blown war from who is to serve as Personal Representative, to the conservation or sale of assets during the administration to the ultimate disposition of assets and settlement of the Estate.

To quote the late great, undeniably talented artist formerly known as Prince, "Life is just a party and parties weren't meant to last." Having a good party planner can make all the difference in the world. Having a good estate plan will ensure not only your gifts to family and charities, but ultimately can further your legacy and mark on the world.

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