A decedent without a will has died intestate. What’s next? When a person dies without a will, state laws determine how the decedent’s assets and property will be distributed, who will raise minor children (if any), and who will be responsible for representing their estate.
Intestate succession laws vary from state to state, and each state has its unique process for determining how the decedent’s assets will be distributed. Intestate succession laws allocate assets to spouses, domestic partners, and blood relatives in most cases. It is worth noting that there are laws in place in all states that restrict anyone who misbehaved towards the decedent from inheriting. When no spouse or partner and no blood relatives can be located, the state inherits the decedent’s assets.
A decedent with a will names an individual who will serve as executor. Without a will, the probate courts decide who will be in charge and name the estate administrator. State intestate laws generate a list of those eligible to fill the role of estate administrator. In most states, the surviving spouse or domestic partner assumes the role. Alternatively, if a person believes that they are qualified for the position, they can apply to be estate administrator according to the filing process in their locality.
Once an estate administrator is appointed, the courts issue a letter of testamentary, a legal document that gives the executor authority to execute instructions on distributing assets and resolving post-death logistics on behalf of a decedent while settling their estate. Then, the estate administrator must collect outstanding payments owed to the decedent and include those funds as part of the overall inventory of all the decedent’s assets and property, as well as obligations and debt, including federal tax debt. This information is required for probate court. Going through the probate process signals the cutting off of all debtor or creditor claims, so once any outstanding debts are paid, including income taxes, the remaining assets can be distributed. Read our article about probate.
Assets Not Included in the Will
Though many assets and property are included in a will, several are not. Life insurance policies are left to the beneficiaries named on the policy. The same applies to any money held in a retirement account, such as an IRA or a 401(k), where the decedent named a beneficiary. Any joint financial accounts or real estate held in joint tenancy become the sole property of the other person named on the account or deed. Additionally, any investments, real estate, or vehicles held for transfer-on-death (TOD) are not included in a will.
When a parent of minor children dies without a will and the other parent is not alive or available to serve as guardian, the children’s best interest is left to the probate court to decide. Most of the time, a relative will volunteer to raise the children, but when there is no such relative available, the state judge must intervene. While the courts will perform due diligence to ensure the children’s best interest, the courts can’t possibly understand any family dynamics that can come into play fully. Without a will, the decedent has no way to choose who will be responsible for raising their children.
While intestate succession laws are in place in every state to facilitate the distribution of assets and property when a death occurs, it is impossible to ensure that the decedent’s specific wishes are thoroughly carried out without a will. Though much of a decedent’s estate is distributed by the probate court when a will is not present, many assets are left to designated beneficiaries.
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