There are a number of reasons why a loved one might die without a valid will. Perhaps they were in the process of drawing one up, or had not even begun thinking about it, when they died suddenly. Alternatively, some people simply do not want to think about their own death and choose to die “intestate,” the legal term for having no will.
This can be a problem for the surviving family, though. Without a clear plan down on paper, family members can become confused and resentful—leading to conflicts over the estate’s assets. Ultimately the family will not have a say; the estate will be distributed by a judge based on local intestate laws, which specify which relatives get what size portion of the estate. Even so, in the chaos and sadness of the moment, bitter feuds can develop.
If you know for a fact your loved one didn’t have a will, then it’s best to jump into action as soon as possible. Even if you deep are in mourning, taking several steps now can bring clarity to the process to avoid any further damage to your family relationships and to protect the estate.
1. Choose someone to take charge
The will doesn’t just provide instructions on how to distribute an estate’s assets; it also appoints an executor. The executor is legally empowered to act on behalf of the estate to carry out the provisions of the will, settle any debts, file and pay taxes, and more.
Without a designated executor, someone else—most likely a family member—will need to take the lead. If you are the person playing this role for your family, eventually you’ll petition the court to appoint your to this role. (But for estates with no will, the role is called the administrator, not the executor.)
Since the court can only appoint one person as administrator, establishing consensus early will prevent family disagreements later.
2. Compile a list of their assets and debts
It’s essential that you come up with an itemized list of all your loved one’s assets that will eventually be distributed and any known debts. From here, you should be able to deduce the value of the estate.
Depending on how much was left behind, the estate might qualify for a “small estate probate exemption,” so you have one less thing to worry about.
The definition of a "small estate" differs from state to state, however, so you’ll need to check your local laws to determine if your loved one’s estate qualifies.
3. Compile a list of all living relatives
When you’re done making a list of the assets and debts, make a list of all living relatives—you’ll need it once you file for probate. Include addresses and contact information.
4. Get copies of the death certificate
The death certificate is a very important piece of paper to have. You can’t move forward—or even plan a funeral—without it.
It generally has a county or state seal on it and is signed by the county coroner. To be an acceptable legal document, it must have the coroner’s original signature—it cannot be a copy.
You’ll need a number of them as you go through the process of settling your loved one’s affairs; experts recommend asking for at least 20 to 30 copies.
5. Petition for probate
When you go to the courthouse to file for probate proceedings, you’ll need to present the death certificate, request forms to petition for letters of administration (which will allow you act on behalf of the estate), and the list of living relatives.
You will need to file in the county where your loved one lived or owned a home.
6. Publish a notice of petition to administer the estate
The fact that you’re petitioning for probate should be known to everyone. Not only should all family members be informed, but a notice should also be published in the newspaper, as well as other platforms that inform people of such things, so creditors are also made aware of it. Whether the court decides you’re the person to best represent your loved one in the upcoming proceedings or someone else would be a better fit, you’ll be notified. This could take several weeks.
7. Consider consulting a lawyer
Although you don’t need a lawyer to file for probate or even go through the proceedings, the advice and expertise of attorney can be incredibly helpful. Just remember that lawyers are expensive, and their fees will ultimately come out of whatever is left of the estate once creditors are paid off.
You don’t have to make any decisions about hiring an attorney now, but you can do some legwork to make things easier down the road. As an immediate step after your loved one dies, ask friends and family for recommendations of attorneys they trust. That way, you’ll have that list if you need it.
Settling the affairs of a loved one who did not leave a will can lead to complex issues, both legal and family-related, and lining up support before you need it can prevent unnecessary delays and heartache.
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