What do you do when someone dies without a will?
When a person dies without a valid Last Will and Testament that states how his or her property is to be distributed, then the person is said to have “died intestate”; the estate therefore is categorized and treated differently from estates governed by a valid will.
In such a scenario, the laws of the state of domicile at death will control of the settlement of the estate and the distribution of the probate property. For intestate estates, the decedent’s property must first go through probate procedures—a court-supervised process that involves gathering the decedent’s assets and distributing them to creditors and heirs.
Dying intestate brings several problems: In cases of intestacy, the probate court appoints an administrator for the estate. The administrator may be a family member, friend, local attorney, or professional administrator. The appointed administrator will need to be bonded and must take inventory of the estate’s assets for the probate court. The appointed administrator will need the probate court’s approval to make important decisions regarding the sale of assets, the payment of debts, and the distribution of property to the heirs. The appointed representative may face adversarial action by creditors or heirs.
If the decedent has minor children, the probate court will likely be the one to appoint legal guardians for them. There is no assurance that the court will look for a guardian who possesses the same qualities the decedent would have wanted. The probate court will need to get to know at least two generations of the family in a short period of time.
Administering an Estate
What is involved when administering an estate when there is no will?
If you need to administer an estate classified as intestate, you first need to go to the probate court to file a petition for letters of administration. If another person petitions the court to be the administrator, then the court must choose between the two. The appointed administrator—whether a family member, local attorney, or professional administrator—sends notice to all involved and interested parties according to statute, local rules, and customs.
Among the first steps of administering an estate is to take inventory of all the decedent’s property. The laws that govern intestate estates are primarily designed to pay any outstanding debts at the time of the decedent’s death upon verification, to pay the costs of administering and settling the estate, and then finally to distribute any remaining probate property to the next of kin. Property can take the form of stocks, bonds, realty, partnerships, trademarks, patents, royalty rights, furniture, vehicles, jewelry, photos, and other heirlooms. Property such as joint checking accounts, investment accounts which are paid to a named beneficiary at death (“PODs”), and life insurance policies are contractual assets that are usually not governed by the probate court, but by their own expressed contractual terms.
As an administrator, you should also be ready to account for everything, and may in certain instances be held liable for any mistakes or errors. If the assets or debts are large or if the family is contentious, you should seek legal advice or assistance on probate law and the court’s procedures.
Consult with an Attorney
Facing fear of the future is seldom easy. Many people delay creating a Last Will and Testament because they would rather not decide how they wish to distribute assets to heirs or to appoint guardians for their minor children. Without a will, however, they leave the future of their family members in the hands of the state laws of intestacy and the probate court. They may be surprised at who gets what. If you wish to discuss estate planning, to prepare documents, or to apply to become administrator of an estate, call James B. Griffin at 205-873-2113 today.