INTESTACY: PURPLE RAIN, PRISON BLUES, AND WHY YOU NEED A WILL

May 23, 2016

why you need a willCountless members of Generation X continue to mourn the recent death of superstar Prince. Although my generation is noted for its skepticism, we whole-heartedly embraced the music of Prince in the 1980s. More than thirty years later, when “Let’s Go Crazy” comes on the radio, we can still recite verbatim the opening lines spoken over the flourish of a church organ: “Dearly beloved; We are gathered here today; To get through this thing called life . . . .”

Prince was known for his intentional non-conformity. Remember the media frenzy when he changed his name to a symbol and had to be referred to as “the artist formerly known as Prince”? It is thus particularly surprising that he died without a Will (or “intestate”), relying on the generic default rules of the State of Minnesota to decide who should inherit his significant estate.

If an individual leaves a writing stating how he or she wants property distributed at death, and if the writing meets certain formality requirements established by the state in which the individual was domiciled at death, then the writing is known as a Will. After the individual’s death, the Will is filed with the probate court or office to prove the Will valid. Once the Will has been proven as valid, the person is said to have died “testate,” or with a Will.

If an individual dies without having left a valid Will, that person is said to have died intestate. The laws of the state in which that person was domiciled then dictate who should inherit, sometimes called the laws of intestate succession. In Minnesota, as in North Carolina, if a person dies and is not survived by parents or a spouse, then any surviving children or issue inherit everything. [“Issue” refers to all people descended from a common ancestor, and thus includes children, grandchildren, and all subsequent generations.] If no children or issue survived, then siblings inherit everything. “Half” siblings (siblings who share only one parent) are treated the same as “whole” siblings.

Prince was not survived by his parents, nor was he married at the time of his death. Prince had a child in 1996 with then-wife Mayte Garcia, but the child died one week after birth. Prince’s sister, Tyka Nelson, has filed a petition with the Minnesota courts listing herself and five surviving half-siblings as the heirs. It was widely believed that these were Prince’s only heirs.

Like any good intestate estate in which money is involved, however, the plot thickens. Earlier this month, Carlin Q. Williams filed a lawsuit claiming Prince was his father, and requesting a DNA test to establish paternity. Mr. Williams claims to have been conceived during a one night stand between his mother and Prince in 1976. Mr. Williams is currently an inmate in a maximum security prison in Colorado, serving time for charges related to domestic violence and firearms. Nonetheless, should Mr. Williams prove himself to be Prince’s only child, he will inherit Prince’s entire estate.

The intestacy rules in North Carolina are similar to those in Minnesota, with property being divided between a spouse, children, parents, and siblings depending on various factors. In my 18 years of practice, I have met a handful of clients who wish to leave their assets to the exact same individuals who would inherit under the intestacy laws, which means such clients could forego a Will and rely on the default rules. For the majority of my clients, however, the intestacy laws do not mirror their wishes. For example, if you own a home titled in your sole name, and if at the time of your death you are married and have two minor children, then under North Carolina’s Intestate Succession Act, the house is distributed to your spouse (an undivided 1/3 share) and your children (an undivided 2/3 share). Your spouse will have great difficulty refinancing the mortgage or selling the house after your death, as a judicial proceeding will be required to obtain authorization with respect to the interests of the minor children.

A Will gives you the opportunity to leave your property to the desired beneficiaries, to leave property to such beneficiaries outright or in trust, to name the Executor who will administer the probate process, to name a Guardian to take care of minor children, to provide for the organized payment of debts and expenses, and to accomplish a variety of other objectives. Dying without a Will might even make the doves cry.

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