A longstanding saying within the estate planning bar proceeds approximately as follows: the prospective client can either engage a competent estate planning attorney to write a proper will or let the State do it for them at their peril. The reference to the “State,” in this context, refers to ceding this important right, namely, of creating a last will and testament, to the state's intestacy statute, as enacted by each state’s legislature. Some individuals may well ask, however, Why, if the intestacy statute exists, do they really need a will? The answer is that the intestacy statute is not a substitute for a will reflecting your wishes, but a fail-safe device of last resort; prospective estate planning clients would still do well to avoid intestacy by adopting a properly drafted will (or living trust).
In an instructive but infrequently discussed intestacy case in Virginia, the question arose whether a decedent’s estate passed half of the paternal share (called the “paternal moiety”) to the share of the decedent's maternal kin (called the “maternal moiety”), or whether a paternal “half uncle” could take the entire paternal moiety. The trial court had held that the paternal half uncle would be permitted to take a portion of the paternal kindred’s share—one half of the paternal moiety, as he was an uncle of the “half-blood” under Virginia law, with the rest passing to the “maternal moiety,” to be divided equally among 14 maternal second cousins who would also receive the entire maternal moiety.
On appeal, however, the Virginia Supreme Court reversed the trial court. The Supreme Court noted that the paternal and maternal moieties theoretically may be rejoined, but only if there is no kindred of one moiety and one or more kindred of the other moiety. In the event that there are one or more kindred of both paternal and maternal moieties, the interests of each moiety are determined entirely separately. The Court thus awarded the entire share that would pass to the paternal moiety to the decedent’s “half uncle” because his status as an heir of the “half-blood” under Virginia law had no application outside of the paternal moiety. The maternal moiety separately would be divided by the 14 second cousins. The ruling thus eliminated any interest that the 14 maternal cousins were awarded by the trial court in the paternal moiety.
An ounce of prevention, in the form of a properly drafted last will and testament or living trust, can go a long way in avoiding these kinds of disputes and the attendant litigation delays, fees and costs.