(This article is not intended to render any legal advice but is intended to illustrate practical concerns. A qualified legal professional should be consulted to assist in estate planning.)

There are plenty of resources and advice for how to implement an estate plan, either in full or in parts. Knowing a bit about what happens in the absence of any planning, though, may be the best incentive to get people to pay attention to their affairs. So, let’s enter the world of intestacy (not a fatal disease, but when a person dies intestate, or without a will; in the following, there is also the complete lack of any other estate documents).

The health care – Despite some high-profile cases, the legal protocol for how to handle health care decisions is well established. Like a number of other states, Arizona statutes require a health care provider to make a reasonable effort to consult with a “surrogate” if an adult patient is unable to communicate health care treatment decisions and does not have a health care directive. The order of priority for the surrogate is:
• The patient’s spouse, unless the patient and spouse are legally separated;
• An adult child of the patient, and if more than one adult child the health care provider shall seek the consent of a majority of the adult children who are reasonably available;
• A parent of the patient;
• If the patient is unmarried, the patient’s domestic partner; A brother or sister of the patient;
• A close friend of the patient, defined as an adult who has exhibited special care and concern for the patient, who is familiar with the patient’s health care views and who is willing and able to be involved and act in the patient’s best interest.

If none of these potential surrogates is available, the physician may either consult the hospital’s ethics committee or consult with a second physician. According to several Tucson physicians, in practice this means that the health care provider will pursue all available treatments, even if they are painful to the patient and have little likelihood of success.

This all seems nice and clear, but imagine the problems it can create. There can easily be differing opinions among these parties about how to pursue treatment and whether to end treatment. Family members can step in even if they have not been involved with the patient for years. An unmarried partner is lower on the priority list regardless of how long the two have been a couple. And if the patient’s wishes have not been made clear in writing, an enormous burden is placed on any surrogate.

The easy solution to potential problems is to complete a health care directive with clear treatment wishes, include a primary and secondary individual and make sure in advance those individuals are willing and able to carry out your wishes.

The money – If you are unable to handle your financial affairs, have no joint financial accounts and have done no planning, the requirements of the financial institutions where you have relationships will dictate whether someone else can transact on your behalf. That essentially means the financial institution will do nothing because they want to take absolutely no risk.

The only practical solution is that someone goes to court on your behalf to seek “temporary relief” and is appointed temporary conservator. But who would go to the time and effort to do this if they haven’t been asked ahead of time. In the meantime, your financial affairs go unattended until you either recover or die.

If you die intestate, “informal probate” can be opened by someone who has petitioned the court and is appointed as special administrator. The petitioner can be a spouse, adult child, parent, sibling, heir, the Veteran’s Administration (for veterans), or, after 45 days, a creditor. If no one is willing to serve as administrator/representative, a public fiduciary will be appointed.

The administrator then has to provide notice of probate to all interested parties, track down and dispose of all the deceased person’s asset and debts (see Stuff below), pay expenses, prepare tax returns and eventually distribute all the property of the estate to the appropriate heirs. Acting as a personal representative is a big job made even more difficult if the deceased is intestate.

If the deceased had no will, the entire estate will go to the surviving spouse unless the deceased had children (or grandchildren, etc.) who were not also children of the surviving spouse. In the latter case, the spouse gets only half the estate and the other half is split among all children, whether they are also children of the surviving spouse or not.

If there is no surviving spouse, the estate goes equally to any surviving children, and if a child is deceased but had children, the child’s share would go equally to his children. If there are no descendants at all, the estate would go to the deceased’s parents, then to the deceased’s siblings and their children, then equally to descendants of both sets of grandparents (i.e., cousins).

In other words, there is a long line of heirs before any non-family member or charity would be in line to receive anything from the estate. And all of those heirs must formally “disclaim” or forego their claim before the next in line receives it. Heirs will come out of the wood work for an intestate estate, and a long-time unmarried partner or close friend is very unlikely to get anything, even if the family has been long estranged.

The solution here is equally simple. Make sure beneficiaries have been assigned to all retirement accounts, life insurance and other accounts where possible. A financial power of attorney will enable the appointed person to manage your affairs while alive and a will can clearly communicate how your assets are to be handled. Perhaps more importantly, a will should appoint an executor (also known as a personal representative) to handle your estate.

The stuff – Access to accounts, storage units, safe deposit boxes and the like require court authorization (see above). But the practical matter of just where all the stuff is can be just as challenging. It’s possible that the person handling the deceased’s affairs simply has to dig through papers and belongings just to determine what’s in the estate. To be safe, the representative may have to just wait six months or a year and hope that mail such as a renewal notice arrives as an indication of the deceased’s property. And in this digital, paperless age there may be no mail or other contact, so potentially valuable assets can go undetected.

There is also the challenge of the “digital estate”, or the deceased’s online presence. Protocols for dealing with digital assets are constantly evolving and add another layer of complexity.

Give a quick thought to how much stuff and how many different accounts (financial and digital) you have and the problem is obvious. The solution is to prepare an “inventory” of where all the stuff is. This is not a legal document but is invaluable in helping family and representatives deal with the estate. The inventory isn’t necessarily a financial statement and doesn’t have to include balances, but should include account numbers, contact numbers and location of all physical belongings.

Death is something we prefer not to think about and we assume we’ll have some period of decline and plenty of time to get our affairs in order. Tragically, that is often not what happens. To make matters worse, money ranks right up there with death as a topic we don’t talk about with family or friends. Some simple planning, even for single people and those without a large amount of assets, can prevent leaving friends and family with a confusing, difficult mess to deal with in addition to the loss of a loved one.