Intestate Succession – Settling Estates Without a Will

ESTATE PLANNING DEFINITIONS

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Understanding Intestate Succession

Intestate Succession is the process of settling the estate of a deceased person without a will. It is crucial to comprehend the intricacies of intestate succession. It’s essential to note that the specific order of intestate succession can vary by jurisdiction. Additionally, some states may have variations in the hierarchy or additional considerations for unique family situations. Therefore, consulting the laws of the specific state is crucial to understanding the precise order of inheritance.

Confirming the Absence of a Will

In some cases, your family may believe there was a Will, but they’re unable to locate it. Therefore, before succumbing to intestate, be certain you have exhausted all efforts to locate a will. It’s advisable to start with the filing cabinet, safe, desk, freezer, a safe deposit box, and other likely places to find a Will.

If a will is still not found, the next step involves locating an attorney who likely drafted the Will. Estate attorneys are expected to keep copies of either the original or duplicate copy of the executed Will in their client’s file.  However, if the attorney is no longer in practice, the state Bar Association may have information about who’s taken over the practice. Alternatively, if the name of the attorney is unknown, you can look for check stubs, emails, business cards, or other documents. These may contain clues about the name of the estate attorney used.

If You Still Can’t Find the Will

The U.S. Will Registry is a helpful resource. The U.S. Will Registry functions as a national database for wills, where entries are made by either the will holder or the attorney who created the will.  Registrations are free to the public to assure that it is accessible to everyone.

This comprehensive database provides a search feature for those seeking a specific will. You’ll need to provide information about the deceased such as their legal name, date of birth, and residing state.

Distinguishing Probate and Intestate Succession

Understanding Probate and Its Role

It is vital to distinguish between probate and intestate. Probate verifies a will’s authenticity, while intestate deals with the distribution of assets when there is no will.

Identifying Non-Testamentary Assets (Not Governed By a Will)

When something is non-testamentary, it means it doesn’t pass through the provisions of a person’s will upon their death. Instead, these assets or matters are typically handled outside the scope of the will.

Typically, many assets, such as life insurance proceeds, joint tenancy properties, or those held in a living trust, do not pass through a will. Instead, to pinpoint beneficiaries, scrutinize documents where beneficiary designations were established. However, keep in mind that co-owned property with the right of survivorship will transfer ownership to the surviving co-owner.

Initiating Probate: Contacting the Court Procedure

Steps to Take:

Initiating Contact:

• • • To commence the probate process, start by reaching out to the probate court in the deceased person’s jurisdiction.
    • Locate contact information online or through local government offices to streamline communication.

Providing Necessary Information:

• • • When initiating contact, furnish essential details about the deceased, including their name, date of death, and residence.
    • Assist the court in locating appropriate probate records by providing comprehensive information.

Appointment of an Administrator:

• • • In instances where no designated executor exists in a will, the probate court may appoint an administrator.
    • Typically, a family member or interested party takes on responsibilities for settling the estate, ensuring a smooth transition.

Publishing Notice to Creditors:

• • • As part of the probate procedure, the administrator may need to publish a notice to creditors in a local newspaper.
    • This crucial step informs potential creditors of the deceased’s passing.  This provides them with an opportunity to make claims against the estate.

Inventory and Appraisal of Assets:

• • • Following the appointment, the administrator creates a comprehensive inventory of the deceased’s assets and obtains appraisals as needed.
    • This meticulous process determines the overall value of the estate, laying the foundation for subsequent actions.

Settling Debts and Taxes:

• • • A critical aspect of the probate process is the identification and settlement of outstanding debts or taxes owed by the deceased.
    • Ensuring all financial obligations are met promptly and efficiently requires actively communicating with creditors.

Distribution of Assets:

• • • Upon settling debts and taxes, the administrator proceeds to distribute the remaining assets to legal heirs.
    • This distribution follows the laws of intestate succession, as determined by the state, ensuring a fair and lawful allocation.

Closing the Estate:

• • • Having completed the necessary steps, the administrator formally petitions the probate court to close the estate.
    • The court, in turn, meticulously reviews the entire administration process to ensure strict adherence to legal requirements.

Final Accounting:

• • • A crucial part of the probate conclusion is the administrator providing a final accounting of estate transactions.
    • This detailed account covers every aspect, from asset distribution to debt settlement, offering transparency to the probate court.

Court Approval:

• • • The probate court, following a thorough review of the final accounting, approves the closure of the estate if satisfied.
    • Once approved, the probate process concludes, marking the successful resolution of the deceased’s estate affairs.

Intestate Succession: Understanding the Sequence of Heirs

It’s essential to note that the specific order of intestate succession can vary by jurisdiction. Moreover, some states may have variations in the hierarchy or additional considerations for unique family situations. Therefore, consulting the laws of the specific state is crucial to understanding the precise order of inheritance.

The usual process of intestate succession typically follows a hierarchical order of relatives who may inherit in the absence of a will. To elaborate, the general order is as follows:

1. Surviving Spouse: The surviving spouse is often the first in line to inherit assets.
2. Children: If there is no surviving spouse or if the assets exceed what the spouse is entitled to, the children of the deceased may inherit.
3. Parents: If there are no surviving spouse or children, the deceased person’s parents may be next in line for inheritance.
4. Siblings and Their Descendants: If there are no surviving spouse, children, or parents, the deceased person’s siblings and their descendants (nieces, nephews) may inherit.
5. Grandparents and Their Descendants: If there are no surviving spouse, children, parents, or siblings, the grandparents and their descendants may be considered for inheritance.
6. Next of Kin: In the absence of closer relatives, the inheritance may pass to more distant relatives, such as aunts, uncles, or cousins.
7. State: If no living relatives are identified, the assets may eventually escheat to the state.

Special Circumstances and Additional Complexity

State laws dictate how the estate is divided among surviving spouses, children, and grandchildren. Different states may adopt the per capita or per stirpes method, further complicating the division of assets. Special circumstances also apply for adopted children, stepchildren, and individuals who caused harm to the deceased. State laws also differ in how far they go to identify surviving blood relatives.

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