If you’re settling the estate of a deceased person who hasn’t left a will, you probably have more than a few questions about how the estate will be distributed. First, it’s important to understand that many kinds of assets aren’t passed by will, such as: life insurance proceeds real estate, bank accounts, and other assets held in joint tenancy, tenancy by the entirety, or community property with right of survivorship property held in a living trust funds in an IRA, 401(k), or retirement plan for which a beneficiary was named funds in a payable-on-death (POD) bank account stocks or other securities held in a transfer-on-death (TOD) account, and real estate or vehicles held with a transfer-on-death (TOD) deed or title document.
To find out who inherits these types of property, you’ll need to locate the documents in which the beneficiary designation was established. These documents will tell you who is inheriting the property. (But if the property was co-owned with right of survivorship, the co-owner will now own the property.) To find out who inherits other assets—solely owned property for which no beneficiary has been formally named, such as a house—you’ll need to consult state law. Every state has “intestate succession” laws that parcel out property to the deceased person’s closest relatives.
State laws set out a list of people who are eligible to fill the executor role when there is no will. If a probate court proceeding is necessary, the court will choose someone based on that priority list. Most states make the surviving spouse or registered domestic partner, if any, the first choice. Adult children are usually next on the list, followed by other family members.
Every state has laws that direct what happens to property when someone dies without a valid will and the property was not left in some other way (such as in a living trust). Generally, only spouses, registered domestic partners, and blood relatives inherit under intestate succession laws; unmarried partners, friends, and charities get nothing. If the deceased person was married, the surviving spouse usually gets the largest share. If there are no children, the surviving spouse often receives all the property. More distant relatives inherit only if there is no surviving spouse and there are no children. In the rare event that no relatives can be found, the state takes the assets. All states have rules that bar certain people from inheriting if they behaved badly toward the deceased person. For example, someone who criminally caused the death of the deceased person is almost never allowed to profit from the death. And, in many states, a parent who abandoned or refused to support a child, or committed certain crimes against a child, cannot inherit from that child.
Intestate succession laws refer to groups of people such as “children” and “issue.” You may think you know just what the term “children” means, but don’t be too sure until you check your state’s laws. It’s not always obvious.
To qualify as a surviving spouse, the survivor must have been legally married to the deceased person at the time of death. Usually, it’s clear who is and isn’t married. But not always.
The simple term “children” can mean different things to different people and under different laws. Many state statutes use the term “issue” to describe who should inherit in the absence of a will, meaning direct descendants of the deceased person (children, grandchildren, and so on).
If an intestate succession law includes the deceased person’s “sisters and brothers” or “siblings” as heirs, this group generally includes half-siblings and may even include half-siblings who were adopted out of the family.
Obviously, an heir who has died can’t inherit. But if the heir was a close relative, such as a child of the deceased person, his or her offspring may be entitled to take some or all of what their parent would have received. Figuring out whether this is the case can be tricky, but it’s essential that you do so before distributing assets.
To inherit under intestate succession laws, an heir may have to live a certain amount of time longer than the deceased person. In many states, the required period is 120 hours, or five days. In some states, however, an heir need only outlive the deceased person by any period of time theoretically, one second would do. Many states have adopted a law (the Uniform Simultaneous Death Act) that says for purposes of inheritance, each person is treated as if he had survived the other.
Intestacy laws often provide that if one of a group of heirs has died, his or her children inherit their parent’s share. In other words, they take the place of the parent. According to this concept (called the “right of representation”), children (or, in some cases, grandchildren) stand in the place of their deceased parent (or grandparent) when it comes to inheritance. Figuring out exactly who should inherit can be complicated depending on state law.
Parents who have young children and who make a will typically name someone to serve as the personal guardian of their children. But if a guardian is needed and there’s no will, how does a court know whom to appoint? In that situation, the judge will gather as much information as possible about the children, their family circumstances, and the deceased parents’ wishes, and try to make a good decision.
The thought of dying before you’ve completed your Estate Planning can be stressful. You’ll be leaving the distribution of personal assets and your entire legacy at the hands of the legal system. Dying intestate means nobody will ever know what your wishes were and even if they do know, they can’t prove it. Their information means little to nothing to a court of law without the proper documentation. The only way to avoid dying intestate is to establish a solid Estate Plan that includes a Will and a Trust, among other important documents. You can start your Estate Plan with the help of an attorney today.
By establishing your Last Will and Testament and other parts of your Estate Plan, you can ensure your estate and assets are controlled by people you trust. You can also feel confident your dying wishes will be known and respected. You can ensure that your spouse, children and any other loved ones are well taken care of. Properly, fully and legally preparing your Will is so important. Even if you’ve started the process, keep in mind you should update your Estate Plans regularly. While there’s no hard and fast rule about how often you should review your Estate Plan, a good rule of thumb is to do so any time you experience a major life event – a marriage, divorce, birth, death, when your children become legal adults…all of these significant times in life are good times to review your documents and make sure your estate is in good order. Remember – any portion of your estate that isn’t appropriately accounted for in your Trust or Will could end up intestate.
Without a Will, in addition to the time, cost and added stress and grief for your loved ones, it’s also very likely that your assets will not end up where you want them to go. There’s no better time than right now to make sure your Estate Plans are in order.
Lots of people don’t write wills—so when it’s time to settle their estates, who should step in to manage things, and who will inherit the property? State law provides the answers. It sets out who will:
Without a will, there’s no way to know who the deceased person would have chosen as the executor, the person in charge of carrying out the terms of the will. But someone must have authority to take charge of the deceased person’s property and debts and wrap up the estate. If a probate court proceeding is necessary, the court will choose someone to fill this role. Some states call this person the “administrator of the estate”; in others, the term “personal representative” is used. Either way, it’s the same job. State law provides a priority list for the court to use. In most states, the surviving spouse or registered domestic partner, if any, is the first choice. Adult children are usually next in line, followed by other family members. If no probate proceeding is necessary, there won’t be an official personal representative for the estate. Instead, someone close to the deceased person—usually the surviving spouse or an adult child—steps in to wrap things up, using informal procedures to transfer property to the new owners. Either way, the personal representative will be in charge of collecting the deceased person’s property, paying debts and taxes, and distributing what’s left to the people who inherit it under state law.
Parents who have young children typically name someone to serve as the personal guardian of their children when they make a will. This person would raise the children if neither parent were available to do it. (You can make a simple will yourself.) But if a guardian is needed and there’s no will, the judge must appoint one, without knowledge of the deceased parent’s wishes. Before deciding whom to appoint, the judge will gather as much information as possible about the children, their family circumstances, and the deceased parents’ wishes and try to make a good decision. The primary rule is that the judge must always act in the best interests of the children.
Can You Probate An Estate Without A Willhttps://t.co/nnZCrJ8vyd
— jannaG (@jannagar07) August 16, 2022
