Wills are intensely personal documents and are one of the grander rights associated with the concept of private ownership. And yet, according to a Harris Poll for RocketLawyer.com, sixty-four percent of American adults nationwide do not have wills.
Dying without a will is called dying intestate. When a person dies intestate, the state in which the person lived substitutes its own will (called a statutory will because it follows the state’s specific statutes) in the person’s behalf. It follows a prescribed formula for disposing of property owned by the deceased to his or her legal heirs, whether this is what the deceased may have wanted. In doing so, the state protects the rights of spouses and children as having a legal claim on the deceased’s property and attempts to locate any distant heirs before the property defaults to the state – a process called escheatment.
According to the National Association of Unclaimed Property Administrators, a total of at least $32.877 billion is currently being safeguarded by state treasurers and other agencies for 117 million accounts. The notion of nearly $33 billion being left by default to the State seems so…. Un-American.
As it turns out, the history of wills goes back much further than American or even English common law. Wills have been recognized as a means of leaving property at one’s death for thousands of years. The images below display two of the oldest wills ever discovered. Dated to around 1797 BC, the wills were discovered by archaeologist William Mathew “Flinders” Petrie (1853-1942), in 1890. Their discovery made legal historians review their theories about the evolution of law. Not only do these documents demonstrate the practice of leaving property to another at death, but the 2nd example validates a woman’s right to inherit property; restricts the legatee from tearing down the houses; names guardians for children; and bears the inscription of two witnesses.
Figure 1: Copy of the title to property made by the devoted servant(?) of the superintendent of works, Ankh-ren. Year 44, month Peyni, day 13. Title to property made by the devoted servant of the superintendent of works, Shepset’s son, Ahy-senb, who is called Ankh-ren, of the Northern Uart. All my property in marshland(?) and town(?) is for my brother the Uab in charge of the corps of Sepdu lord of the East, Shepset’s son, Ahy-Senb, who is called Uah; all my associated persons(?) (are) for this brother of mine. These things were deposited in copy(?) at the office of the second registrar(?) of the South, in the year 44, month Paophi, day 13.
Figure 2: Title to property made by the Uab in charge of the corps of Sepdu lord of the East, Uah: I am making a title to property to my wife, the woman of Ges-ab, Sat-Sepdu’s daughter Sheftu, who is called Teta, of all things given to me by my brother, the devoted servant of the superintendent of works, Ankh-ren, as to each article in its place of everything that he gave me. She shall give it to any she desires of her children that she bears (has borne ?) me. I am giving to her the eastern slaves, 4 persons, that my brother, the devoted servant of the superintendent of works, Ankh-ren, gave to me. She shall give them to whomsoever she will of her children. As to my tomb, let me be buried in it with my wife, without allowing anyone to move (?) earth to it. Moreover, as to the apartments that my brother, the confidential servant of the superintendent of works, Ankh-ren, built for me, my wife dwelleth (shall dwell ?) therein, without allowing her to be put (forth) thence on the ground by any person. It is the deputy Gebu who shall act as guardian of my son (lit. “be child-educator for my son”).
One legal scholar has commented that these wills are so well drafted that they would likely be viewed as valid even today. However, I’m not sure how many chancery courts are familiar with hieroglyphics.
David W. Russell, CFP®, CSA® is Vice President and Trust Officer with Argent Trust in Nashville, TN. He is founder and editor of Wealth and Honor, an educational website offering community and resources to families in age transitions. His book, What You Need to Know: The Adult Child’s Guide to Becoming an Effective Financial Caregiver is available on Amazon.