Does No Will Mean No Probate As Well?

Some people fail to make out a last will and testament for various reasons. Some may think they have to have lots of assets before they need a will or some just put it off until it's too late. Others might be under the impression that they are doing their loved ones a favor with not making out a will since no will means no probate. That is an incorrect and unfortunate misconception. The only way to get out of probate is to have less than the minimum in estate assets (in some states). Additionally, if you use trusts, deeds, and account designations to deal with your property, you might have nothing to probate. For most, however, probate is a fact a life. If someone passes away with no will and no way of dealing with the estate, the state steps in. Read on to find out what happens next.

Why Have Probate At All?

Probate has been around for a very long time, and its original intention still holds today. If not for probate, the debts of the deceased would go unpaid, and the survivors could end up being treated unfairly. Probate takes a will, when there is one, decides if it's valid and legal, oversees how the bills are paid, and sees to it that the beneficiaries get their rightful inheritance. Probate takes on a new and vital purpose when the deceased passes away with no will.

How Does Probate Deal With the Intestate?

If a will does not exist, cannot be located, or is ruled to be invalid, the deceased is said to have died intestate. Just as when a person dies with a valid will, a person must be appointed to serve as executor (also called a personal representative). With no instructions by the deceased to guide probate, the court will choose an executor. The individual appointed may be a family member, a family friend, the family attorney, or another trusted person. The executor works with the estate attorney and the probate court to see to it that the bills of the estate get paid in a certain order of priority and that all bequeathed property is provided to the beneficiaries. They also have appraisals performed on real estate, do an inventory of assets, and maintain the property while the estate is being probated.

How Are Beneficiaries Chosen?

A will sets out exactly how the assets of the estate are to be distributed. With no will, the probate court uses something known as succession to name beneficiaries. In most cases, the entire estate will go to the surviving spouse and children after a death. If the spouse is deceased, the estate goes to the children of the deceased. If the children are deceased, relatives are named in a specific order of succession.

To get your estate plan in place and avoid any uncertainty, speak to a probate law attorney at your earliest convenience.