Understanding How Probate Proceeds When There's No Will

While almost everyone understands the need for making out a will, there may come a time when you have to deal with the passing of a loved one who never got around to that task. Some people are under the mistaken belief that not creating a will keeps your estate out of the probate process, but that is not true. When there's no will, the road to settle the estate may be more difficult. Read on for some guidance on what happens when there's no will.

Who Gets to Control the Estate

Most people don't realize it, but if there is no will, all of the important decisions concerning the estate will be made not by you or a loved one, but by the state you live in. A will nearly always contains an important appointment; that of an executor or personal representative. This person is someone trusted to carry out the wishes of the deceased and the person appointed must be honest and responsible. Without a will, the probate courts will have no choice but to appoint who they wish to administer the estate. Most states have a plan of "succession" to deal with this appointment, with the surviving spouse often being the appointee or the oldest child of the deceased.

Intestate Succession

When there is a death and no will can be located, or none was ever composed, the estate is said to be "intestate". For guidance on how to distribute the property of the estate, most states use a process known as intestate succession. You can picture this plan as sort of a family tree, with the closest living relative at the top of the tree. This may be the spouse, then the oldest child and then the rest of the immediate family. Make no mistake; the estate is not divided up among survivors; it all goes to the spouse or the single living offspring. If there is no living spouse and there is more than one child, the estate is divided equally in that instance.

If there are no immediate relatives, other blood relatives are searched out: the siblings of the deceased, cousins, etc. While every effort is made to locate relatives, it is not uncommon for a long-lost nephew to show up years after the death to contest the will. It should be noted that there is no way to leave anything to a charitable organization if there is no will.

To learn more, speak to an estate law office like Klotz Jean Law Office Of.