According to a poll conducted by Gallup in May 2016, just 44% of Americans have a will. And, this means that more than half of Americans will likely have their estate go into probate without a will once they die. Creating a will means to lay down a clear view of how you’d like your estate handled after you pass away.
In the absence of this document, the courts decide how your next of kin will receive your assets and other belongings. In other words, the estate goes to probate. If the law is unable to find a blood relative, your property will revert by default to the state. If you would prefer that your hard-earned assets go to your loved ones, it is advisable to create a document outlining your wishes. In this way, you’ll not just avoid probate without a will but you’ll prevent any conflicts among your successors.
Probate: The Default In Absence of a Will1
Every state has a designated probate division, also called a probate court that handles the financial affairs of people who die intestate. In other words, people who pass without having created a will while they were alive. The probate court works according to the state laws that regulate who the assets will go to. Their guidelines or “Intestate Succession Laws” resolve all the questions that typically arise at the time of distribution. Like, for instance, identifying the legal spouse and kids of the deceased.
Estate Inclusions that Courts Manage
All the assets that the deceased has left behind from a part of the probate without a will proceedings. These assets may include:
- Property transferred to a living trust
- Proceeds from life insurance policies
- Real estate
- Balances in bank accounts
- Assets owned in joint tenancy, community property with survivorship rights, or tenancy by the entirety
- Any real estate or vehicles owned under a transfer-on-death (TOD) deed or title document
- Balances and funds held in a payable-on-death (POD) bank account
- Stocks and other securities owned under a transfer-on-death (TOD) account
- Funds in a 401(k), IRA, retirement plan that have a specified beneficiary
Probate courts attempt to locate the documents that name the beneficiary or co-owner if any. In the absence of any such paperwork, they may distribute the assets according to the Intestate Succession Laws that govern the probate without a will.
Courts Perform Important Functions During Probate Without a Will
The main objective of probate litigation is to monitor the proceedings that immediately follow the death of an individual. These functions include:
- Resolving debts and ensuring all creditors are paid their dues. Depending on the laws of some states, creditors have a fixed time interval within which to claim the dues payable to them. Further, according to the regulations laid down by the Federal Trade Commission (FTC), debt collectors can claim these dues only from the estate of the deceased and not the survivors.
- Paying pending taxes
- Transferring the remaining assets to the legal heirs
- Resolving conflicts among the claimants of the property. Although the assets go into probate without a will, successors may file civil litigation claims. Probate courts deal with these claims according to the Intestate Succession Laws of the state. These laws dictate that the spouse or registered domestic partner, surviving children, or blood relatives can get shares in the property of the deceased. Any other claimants like friends and unmarried partners have no legal right to any property and cannot litigate against the probate. In case of the absence of any legal successors, the estate belongs to the state.
- Transferring of titles of the assets. In case the assets are not a part of a trust or joint ownership, the court oversees the proper transfer of titles.
Probate Courts Appoint an Official Administrator to Manage the Estate Division
In case of probate without a will, the court appoints a spouse or any other nearest relative to act as administrator of the estate. The probate court chooses this executor according to a priority list. Typically, the spouse or registered partner is the first choice. If this person is incapable or not interested in executing the distribution of the estate, the court chooses an adult child or closest relative.
Alternatively, any person who is a relative of the deceased can also start a probate without a will by filing a petition in the probate court. This person can volunteer to deal with the assets by submitting a death certificate of the deceased. He or she must also submit a completed form for Petition for Letters of Administration. After following all the required procedures, the volunteer can manage the distribution of the assets of his or her relative.
Probate Laws May Disallow Certain Relatives from Making Claims
When conducting the probate without a will proceedings, the courts may screen the claimants for the validity of their claims. All Intestate Succession Laws have clauses that disallow specific relatives from inheriting any assets under certain circumstances. Here are a few of them.
- The relative is responsible for criminally causing the death of the deceased
- The parent of the deceased abandoned the child or refused to support him or her
- The parent of the deceased is found guilty of committing crimes against the child
- The claimant is a child of a divorced spouse from an earlier marriage
Not leaving behind clear instructions regarding the management of your assets can cause avoidable complications for your successors. Prevent the need for your assets going to probate without a will by drawing up a valid document. Work with an experienced attorney who can guide you on the steps you must take.
Have you drawn up a will and registered it in a court of law? If you haven’t, now is a good time to get in touch with an expert lawyer. Contact us or call us at this number: (949) 514-8605. Our consultants will help you with the initial queries you may have.
Have you ever participated in the proceedings of a probate? Would you like to talk about your experiences? Our readers would want to read about how probate without a will works? Please use the comment box below.
Probate Without a Will