What Happens If You Die Without a Will?
When a loved one dies, the next few days and weeks can be challenging as you deal with grief and manage what is left of their estate. One of your first tasks will be to file a will with the county court where they lived to ensure the estate is handled the way the decedent wanted. This step becomes challenging if you can’t find a will. You may wonder what happens if you die without a will or who inherits if no will is found.
Intestate vs. Testate
If you die without a will, it means the estate is intestate. An estate that is testate means that the decedent left a valid will to be followed for the distribution of the estate. Without a will, the estate property is distributed based on the probate laws of the state where the decedent lived.
The assets are immediately frozen upon their death. This includes bank accounts, retirement accounts, and investment accounts. No one will gain access to those assets until the court has applied the testacy laws of the state to the decedent’s assets. It’s often complicated and time-consuming to deal with the probate process and get the remaining assets divided between the heirs.
Filing a Petition with Probate Court
Even without a will, someone will need to file a petition with the probate court to begin the probate process for the estate. The court will schedule a hearing where it will determine who will act as the personal representative of the estate. This is usually the surviving spouse or an adult child, but it can be another family member or even an attorney.
Once the petition has been filed and a person appointed, they will begin their duties to the estate. They will receive documentation to use which allows them to act on behalf of the estate. This includes accessing frozen accounts to maintain the assets of the deceased. For instance, they may need to pay employees if the decedent owned a business. They will need to continue paying utilities for the house where the decedent lived.
The Job of the Personal Representative
The personal representative of the estate will give notice to any creditors that may have a claim against the estate. They will pay all bills and valid claims, file and pay any taxes owed, and prepare an accounting for the probate court.
The personal representative may need to sell assets to distribute the monies to the heirs or to pay outstanding debts. They will usually need the permission of the court before they can sell any assets of the decedent.
Who Inherits Without a Will?
Once all debts have been paid, the next step is to distribute the remaining assets to the heirs based on intestacy laws. With a will, this is done based on who the decedent wanted to inherit. Without a will, it comes down to the intestate succession laws where they lived.
While the states have separate laws for inheriting an estate and community property, they are similar. The surviving spouse inherits first followed by the children. In some cases, the spouse inherits a portion, and the children inherit the rest equally. This includes adopted children the same as biological children.
After immediate family members, the grandchildren inherit next, followed by parents and siblings in the intestate succession laws. Nieces and nephews, aunts, and uncles all follow next with cousins last as distant relatives inherit. Anyone who is not family isn’t included in the state’s laws.
In most states, stepchildren don’t inherit. They aren’t treated as biological or adopted children. In other cases, they would be last on the list to inherit community property if no other family members are living after blood relatives inherit.
Guardianship of Children
While most people think about a will in terms of who inherits what and how much, this legal document serves another important purpose. A will also states your wishes for who will care for your children if they are underage.
A relative is usually chosen to raise the children and become their guardian by the court if no will exists. However, this may not be the deceased parents’ wishes for their children. If they prefer another relative or a friend to become a guardian for their children, they will need to have this stated in writing in a will.
Nonmarried Estate Owners Who Die Without a Will
If you aren’t married with a surviving spouse or have no children, dying without a will may affect you differently. If you’re single and have children, they will inherit the entire estate. If you don’t have children, your parents would inherit and be in charge of your estate.
If your parents are already deceased, siblings would be next to inherit, according to intestate succession laws. Beyond that, family on the mother and father’s sides would inherit equally.
When a person dies with a surviving spouse and children from a previous relationship, most states allow those children to have a portion of the estate. The spouse will get a percentage and the rest is divided equally between those children. The percentages will vary based on state law.
Domestic partnerships are even more complicated. Most states treat a registered domestic partner the same as a surviving spouse. Some states don’t recognize unmarried partners or common law marriage at all, which means they would inherit nothing, and the assets would pass onto relatives.
Do You Need a Will?
The short answer is “Yes.” A will ensures your wishes are honored after your death for your estate property. If you have an unusual situation or wish for specific people to inherit outside the rules of state law, you must have a will to state your choices.
In the case of children or siblings, everyone inherits equally under state law. If you wish for one sibling to inherit everything or another to be left out completely, you must have a will. Otherwise, the court will divide your estate equally between everyone in the same group. You also don’t want to leave things to chance if you are in a common law marriage.
Any assets that have a payable or transfer on death document with a named beneficiary are treated as separate property. The person named as beneficiary will inherit whether there is an existing will or not. This can include life insurance proceeds, bank accounts with a beneficiary, and other assets. It doesn’t follow the intestate succession law or go through the local probate court.
Creating a will is an important part of estate planning. You should discuss your wishes with an experienced estate attorney and not leave your estate to intestacy laws. Make sure you update your will as relationships change to ensure those who you wish to inherit are able.