If you pass away without a valid Will, the probate court will distribute your assets based on your state’s laws of intestacy. The intent of intestate succession laws is to distribute assets to relatives in a manner that resembles how a typical person would design an estate plan. Exceptions can never be made, no matter how obvious it is that this was not what the deceased person would have wanted, or for any special circumstances. That’s why it’s important to have a Will and to register it with the U.S. Will Registry, to ensure that your beneficiaries are able to find it.
Meaning of Intestate
According to the Merriam-Webster dictionary, intestate means “having made no valid will.” This means that in order to avoid having your property distributed based on state laws of intestacy, you must not only state your wishes for your assets after your death, but you must also strictly adhere to your state’s requirements for the formation and execution of a valid Will. If any of the follow elements are found to be lacking in a will, then a probate court may deem the Last Will ‘invalid’. Without a valid will, the deceased will be stated as dying, ‘intestate”.
The Four Elements Required for a Will to be Valid
- Testamentary intent;
- Testamentary capacity;
- Execution free of fraud, undue influence, duress or mistake; and
- Proper execution.
The first element: Testamentary intent is usually met by simply stating at the beginning of your will that you intend it to be your “Last Will and Testament.” The second element: Testamentary capacity is defined as the drafter being of “sound mind” and capable of drafting a Will. If a probate judge determines that you lacked capacity to make a Will at the time it was executed, the judge will declare the Will invalid. This requirement is for your protection. For example, if you were diagnosed with Alzheimer’s, did not remember your children’s names and gave all of your money to your home health aide in a recently executed Will, the court will likely declare it invalid. Freedom from fraud, undue influence and duress are requirements for Wills. A mistake such as a digit wrong on a birthday or a misspelling is unlikely to invalidate a will, but failing to include close relatives without an explanation could be held to be a mistake that invalidates a Will. The fourth element is proper execution. Each state has its requirements for a Will execution ceremony such as number of witnesses and where the signature must appear.
Dying Without a Valid Will
If you die without a valid Will, the majority of your assets could still pass without probate to your intended beneficiaries. This is because non-testamentary assets, also known as non-probate assets, are not controlled by a Will. For example, property such as real estate, stock and bank accounts that are held as joint property with rights of survivorship are not subject to probate. Life insurance and some retirement plans also designate beneficiaries in a manner that allows the funds to pass to beneficiaries without a Will. Some estate plans are based on avoiding probate by moving as much property as possible into trusts. But even trust assets could still end up in probate if the beneficiaries are not properly updated. For this and other reasons, it’s prudent to include a Will that accounts for property that is intentionally or unintentionally subject to probate to avoid probate.
Laws of Intestate Succession
Intestate Succession is also knows as Inheritance Succession. The Uniform Probate Code was promulgated in 1969 and revised most recently in 1968. It was intended to streamline and modernize probate laws for all fifty states, but it’s only been fully adopted by fifteen states (Alaska, Arizona, Hawaii, Idaho, Maine, Michigan, Minnesota, Montana, Nebraska, New Mexico, North Dakota, South Carolina, South Dakota and Utah.) The other 35 states have adopted portions of the Code with some variations, but the basic rules for inheritance are similar in every state. If you’re married, a portion of your estate will go to your spouse, and the entire estate will pass to your spouse if you don’t have surviving descendants or parents. If you don’t have a surviving spouse, your descendants are next in line, and then your parents, your grandparents and your next closest relatives. The laws of intestacy do not allow for inheritance for friends, no matter how close, and for blood relationships that have gone sour. So it’s important to have a Will or non-testamentary estate plan if you would like any of your property to avoid certain relatives or pass to non-relatives.
Probate Process Without a Will
If you die intestate, the estate administration process is supervised by the probate court in accordance with your state laws of intestacy. The court will begin by appointing an administrator to serve on behalf of the estate. Once the administrator is appointed, they will be assigned the duty of collecting your property and obtaining appraisals to determine the value of items such as jewelry and antiques. Next, the administrator will gather information about the debts owed by your estate and arrange for the payment of debts and taxes. Once this is accomplished, the remainder will be distributed to your relatives based on the state’s laws after the court approves the final distribution and accounting.
How To Find Lost Wills
In some cases, your family may believe there was a Will, but they’re unable to locate it. Start with the filing cabinet, safe, a safe deposit box and other likely places to find a Will. If nothing turns up, the next step is to try to locate an attorney that’s likely to have drafted the Will. Estate attorneys are supposed to keep copies of an original executed Will in their client’s file. If the attorney is no longer in practice, the state Bar Association may have information about who’s taken over the practice. When the name of the attorney isn’t known, it’s a good idea to look for check stubs, emails, business cards, other documents that might contain clues about the name of the estate attorney used.
If the Will Still Can’t be Found
The U.S. Will Registry is a helpful resource. You’ll need to provide information about the deceased such as their legal name, date of birth and residing state in order to conduct a search.
That’s why it’s wise to make sure that you or your attorney registers your Will with the U.S. Will Registry so that it can easily be found when you pass away, ensuring that your estate doesn’t pass through intestate succession. Registration is free, yet priceless.