How To Settle An Estate Without A Will
Realistically speaking, many people fail to write a will before they die. In short, there's no legal document that can communicate their final wishes regarding their assets and dependents, if there are any. When this happens, the surviving family or loved ones may not know how to settle the deceased person's estate.
In most cases, settling an estate means having the assets distributed to the heirs or beneficiaries according to the deceased person's will. If there's no will, the law will dictate how the estate should be settled.
Thus, if a loved one of yours has died and left no will, read on to learn how you can settle an estate without that legal document.
Name An ExecutorSince the deceased person or decedent failed to write a will, it would be difficult to identify the person they would have chosen to administer the estate. This makes naming an executor the first step in settling an estate without a will. In this process, you should determine the following:
When The Estate Needs To Undergo ProbateTo find out whether the estate should undergo probate, it's essential to consider some factors, including the kinds of assets included in the estate and its total monetary value. Hence, if your deceased loved one's estate qualifies as a ‘large estate’ according to the laws of the place where they lived, it has to undergo the probate proceeding.
During the proceeding, the court will pick someone to become the executor of the estate. Generally, the state laws provide an order of priority when choosing someone for the role. The following is a list of people who can become executor:
- Surviving spouse
- Parents of the decedent
- Brothers or sisters
- Any person who is competent enough to become an executor
When The Estate Doesn't Need To Undergo ProbateIf the estate doesn't have to be probated, the court can't designate an official executor for it. In this situation, someone close to the decedent will have to settle the estate. This can be the surviving spouse or the adult child.
Once the executor or representative has been appointed, they'll have the authority to settle the estate by collecting the deceased person's property, paying all the debts and taxes, and transferring the remaining assets to the persons who will inherit them.
Determine Who Inherits The EstateSince there’s no will to provide information on how the estate should be distributed, the executor should follow the intestate succession laws of the state. In other words, the manner of distribution of the assets included in the estate is determined by law.
Typically, only the spouse, children, and other blood relatives can inherit the estate of the deceased. If the estate's owner is married, the spouse will get the largest share, followed by the children. If there are no children, the whole estate is given to the surviving spouse. The blood relatives of the decedent will only inherit it if there are no children and no surviving spouse.
However, to better understand what ‘spouse’ and ‘children’ mean under certain intestate succession laws, you need to familiarize the following terms in their legal contexts:
- Legal separation or divorce: When a couple has been legally separated or was undergoing divorce proceedings before one died, the court may need to determine first whether the surviving one can still be considered a surviving spouse for succession purposes.
- Same-sex marriage: Since this type of marriage is considered illegal in most states, it can be presumed that same-sex couples have the same rights and privileges as heterosexual married couples. However, to make sure the surviving member of the same-sex couple qualifies as a surviving spouse, it’s best to check the state laws to know the legal status of that relationship.
- Common-law union: The couples under this arrangement live together and present themselves to the world as married without the benefit of a marriage ceremony. The rights of the spouses under a common-law union may vary depending on whether their state recognizes such an arrangement. Hence, if the state recognizes the common-law marriage as legal, the surviving spouse may inherit from the deceased spouse.
- Adopted children: In most states, they have the same rights and privileges as the legitimate children of their adoptive parents. Thus, they can legally inherit with or without a will.
- Foster children: They’re not usually entitled to any inheritance from their foster parents since they’re not legally related to the parents in any way.
- Stepchildren: In most states, they don’t have any right to inherit from their stepparent. Technically, they’re the children of the spouse of the decedent, and they weren’t legally adopted by the deceased. So, they don’t have the rights and privileges accorded to legitimate and legally adopted children.
- Children born outside marriage: Even if the parents weren’t married when the children were born, the children can still inherit from their birth mother. When it comes to their father, they need to provide sufficient proof that they are the children of their purported father.
- Children adopted by a stepparent: Even if they’ve been adopted by a stepparent, they may still inherit from their biological parent depending on the applicable state law.
But you should remember that not all properties can be automatically transferred to legal heirs and beneficiaries. There are several kinds of assets that can’t be passed by the state intestate succession laws. These can include life insurance, assets held in a living trust, funds in a retirement plan in which a certain beneficiary was designated, and bank accounts and real estate assets held by community property or tenancy. When dealing with these assets, make sure to locate the documents and check who can inherit them. Doing so can make the distribution easier and faster.
Identify Who Will Take Care Of The Decedent’s ChildrenIf you're the executor and the decedent has young children, it's essential to identify the person who will raise and take care of them. This is especially true if the other parent is unavailable to serve as the personal or legal guardian of the children.
So, when settling an estate without a will, make sure to check whether the decedent’s young children need a guardian. If they do, file a petition in court seeking the appointment of one. At this point, the judge will collect information about the kids, the family, and other factors that can influence their decision.
Once a guardian is appointed, you can finally settle the estate in full as the executor.
Why Do You Need A Lawyer To Help Settle An Estate?Settling an estate without a valid will from the decedent can be tough because everything will be done according to the state’s intestate succession laws. Although the court names an executor to handle the estate administration, it would still be best to work with a lawyer to make the whole process more seamless and stress-free. So, if you’re an executor, the following are some reasons to hire a lawyer to help you settle an estate:
- Complicated family relationships: There are instances wherein some family members may question the settlement of the estate. Since there’s no will to rely on, the laws on who will inherit may create hard feelings, confusion, and even the threat of lawsuits. To handle these situations, it’s best to hire a lawyer to help you explain the process and reduce family conflict.
- Insufficient money to pay debts: If the estate has more debts than assets, you, as the executor, may have to prioritize which debts should be paid first. Because of this, you need the assistance of a legal professional who knows the state laws about creditor preference. They can help identify which creditors are preferred to be paid by the estate.
- Tax issues: If the estate is subject to certain tax obligations, you will need to seek legal help to navigate the matter properly. They can advise you on ways to reduce taxes without circumventing the law.
- Different kinds of assets are involved: The settlement process could become more complicated if the estate contains various kinds of assets, such as businesses and commercial properties. These assets can be challenging to administer because they require special management and many considerations to make the process more successful.
TakeawaySettling an estate without a will can be a complicated process if you have no idea how and where to start. Since the estate owner didn't leave a will, the laws of intestacy or intestate succession will apply. This means the estate will be inherited according to law and not the decedent's wishes.
Hence, if you want to navigate this process more efficiently, keep the information above in mind. By doing this, you can ensure seamless administration of the estate.
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