There is nothing more heartbreaking than losing a loved one. If they died without a Will, it can add even more grief: causing a scramble among you and your family trying to figure out what will become of their assets. We’re going to take a look at what happens if your loved one dies without a Will and why everybody should have one.
Why Do I and My Loved Ones Need a Will?
A Will, also known as a Last Will and Testament, lets you express your final wishes of how you want your estate settled. It allows you to choose beneficiaries and what you want them to inherit after you are gone. In other words, a Will gives you the legal power to decide who gets what when you pass.
Related Article: Questions You Need to Ask and Answer When Creating a Will
You may want to leave your home, a sum of money, a vacation house, or a sentimental family heirloom to specific family members, friends, or charities when you die. Perhaps you have digital assets such as cryptocurrency, pictures, or social media accounts you would like a loved one to have.
Related Article: Including Cryptocurrency and Digital Assets in Your Will
If you have minor children, you can name a guardian to care for them if something happens to you. A Will lets you dictate your choices.
My Loved One Died and Had No Will. Now What?
Your cherished loved one dies and you learn they did not have a Will. You may be expecting a share of the estate, or they may have promised you or a family member a special inheritance. Without a Will, expectations and promises mean nothing. For any assets to be handed down in accordance with your loved one’s wishes, a legal Will must be in place.
So now, your loved one’s estate is up in the air. There are debts to settle and assets hanging in the balance. The probate court in the decedent’s county must now step in and take control.
The first step to take is to notify the court of your loved one’s passing. You can petition the court by submitting a death certificate, an estimate of the estate’s value, and a list of potential beneficiaries.
Dealing with Intestacy
When someone dies without a Will, a state’s intestacy law kicks in – a statute that gives a state the authority to distribute the assets of a decedent who did not have a Will.
Your loved one’s estate is now in the hands of the probate court. Regardless of their wishes, it will be your state’s laws that get the final word of how the assets will be divided and to whom will receive them.
Although laws vary in each state, basically the order of family and relatives will dictate how assets are distributed under the intestacy statute.
This means that assets would be distributed in successive order:
- Your surviving spouse
- Then your children
- And then closest relatives (parents, descendants of your parents, siblings, nephews, nieces, grandparents, aunts, uncles, and cousins)
If there are adopted descendants, they are considered the same as biological descendants. If there are no apparent family members or relatives eligible to receive your loved one’s assets, the entire estate is managed by the public administrator who researches to find long lost relatives and of course charges fees for their services.
Administrator of the Estate
Since there is no Will, there is no executor (also known as a personal representative) – a person named by the Will’s creator (known as the testator) that would oversee settling the estate. In this case, the court would appoint an administrator and issue Letters Testamentary authorizing the administrator to act on behalf of your deceased loved one.
An executor has more authority than an administrator. Where an executor is guided by the instructions and wishes laid out in the Will, an administrator is tied to the intestacy law.
Related Article: Checklist: How to be an Executor of a Will
You could petition the court to nominate yourself or a family member to serve as the administrator. It’s best to have all family members in agreement as to who will serve in this role to avoid issues later. It’s ultimately the judge to decide who is best qualified to serve; and it’s not always the next of kin such as the surviving spouse or oldest child chosen for the task.
Once the judge appoints the administrator, the probate process begins. A hearing may be held where interested parties such as potential heirs or creditors can weigh-in. The administrator must provide a list of all assets, debts, creditors, and secure a bond. The latter is like an insurance that protects the estate from any wrongdoing by an executor or administrator.
Related Article: A Comprehensive Guide of the Probate Process
Generally, trust assets are not reported to the court. Trusts avoid probate and inheritance laws.
Once all debts, taxes, and fees are paid, the remaining assets can be dispersed by the administrator and the estate closed. As mentioned earlier, assets must be distributed in accordance with the intestacy law that spells out who receives the assets in a certain order. It is the responsibility of the administrator to follow this protocol.
Unfortunately, not everyone may agree as to how the administrator is divvying the estate.
Suppose your loved one had a falling out with a family member and did not want to leave anything to that person. Under the intestacy law, that estranged person could be entitled to an inheritance.
Or let’s say there are stepchildren who were not legally adopted. In this scenario, they would not be permitted an inheritance.
A legal challenge could result from loved ones of the deceased who felt slighted or thought they were entitled to something. A Will would have avoided these issues where your loved one could have spelled out their exact wishes.
What Happens if I Die Without a Will?
As you can see, dying without a Will can have dire consequences: inheritances going to unintended people, wishes not honored, expensive and lengthy legal battles. This can cause loved ones to turn on each other; a family rift in the making that could be everlasting.
Protect yourself, your wishes, and your loved ones by creating an online Will with Gentreo. If you have a loved one who does not have an estate plan, encourage them to think about it.
Related Article: How to Talk with Your Family About Estate Planning
We have the tools and resources to help you create a custom and affordable online estate plan.
As we say at Gentreo, leave your legacy, don’t leave a mess!