A recent survey showed that 64% of Americans do not have a will in place. Of those without a will in place, 27% of those surveyed said there is no urgent need for a will. In our busy daily lives, many people say they simply have not gotten around to making a will. Unfortunately, when people die without a will in place, the distribution of assets will be up to the probate court. The best way to ensure that the people you desire to inherit your assets will receive your assets is to have an experienced estate planning lawyer help you craft a valid will.
When a person dies intestate, or without a will, his or her estate will go through the probate process. A probate court will supervise the distribution of assets, and it may distribute your property in a way that is totally different from what you intended. The best way to ensure that your wishes are met is to create a will.
What Happens When the Decedent Was Married?
When the decedent was married and died without a will, the probate court will consider whether or not the decedent and the spouse owned community property together, separate property, or both. Community property involves any assets that either spouse acquired during the marriage.
Separate property includes any property that either spouse owned before the marriage, including any gifts or inheritance. There are exceptions to the general rule, of course; an experienced lawyer can help you determine which assets are considered community property and which assets are considered separate property under probate law.
When a person who is married dies without a will, the probate court will transfer all of the community property to the widow or widower. Any separate property owned by the decedent will transfer to the spouse, as well, as long as the decedent has no surviving children, parents, siblings, or nephews or nieces.
If the decedent only had a single child or grandchildren from a child who had passed away, the surviving spouse will receive half of the decedent’s separate property. If the decedent had more than one living child at the time of his death, the surviving spouse will get a percentage of the decedent’s separate property. For example, if the decedent had three living children at the time of his or her death, the surviving spouse would receive one-fourth of the decedent’s separate property.
What Happens if the Decedent Was Not Married?
When the decedent is unmarried, his or her surviving children will inherit all assets in equal shares. For example, if the decedent had four living children at the time of his death, each child would receive one-fourth of all of the assets. When the decedent has no surviving children, the assets will go to the decedent’s parents.
If the decedent’s parents are deceased, the estate will go to the brothers and sisters of the decedent in equal shares. If the siblings predeceased the decedent, the children of the decedents will receive the estate in equal shares.
When the decedent has no parents, brothers, or sisters, the grandparents will inherit the decedent’s estate and so on. The oldest generation with surviving children will inherit the decedent’s estate.
What Happens to Assets You Hold Jointly if You Die Without a WIll?
If a decedent dies without a will in place but owns assets in some form of joint ownership, then the assets will automatically pass to the surviving person. For example, if you own a bank account or retirement account jointly, then the surviving joint tenant will receive your assets when you pass away. Many 401(k), IRA, and life insurance accounts are set up to allow assets to transfer on death to another named beneficiary.
Many people name their spouse as a joint tenant. The same concept applies to real estate property held in joint tenancy with a right to survivorship. If you pass away and your deed reflects joint tenancy with right to survivorship, your co-tenant will automatically become the sole owner of the property. Even if you die without a will in place, these accounts will transfer accordingly.
Many people forget to update their accounts or property held in joint tenancy. Keep in mind that assets held in joint tenancy only pass to the surviving joint tenant. The joint tenant has no legal obligation to share these assets with any other person. It is wise to only name people as joint tenants whom you deeply trust because these joint tenants will be co-owners with you.
What Happens When the Decedent Had Dependent Children?
When the decedent has dependent children, the court will appoint a guardian for the children. Parents with minor children should appoint a nominated guardian who will get custody of the minor children. Without a will, the parents of the decedent will not have a say in who will become the guardian of their children.
When the child has several relatives of the same degree, the court will appoint the relative who is best suited to act as the guardian. Unfortunately, if you die without a will, the court will have total control over who will care for your children.
Contact Our Experienced Probate Lawyers Today
You do not want to allow the probate courts to dictate how your property is distributed. In an ideal world, everyone would have a valid will. Unfortunately, most Americans do not have an adequate estate plan in place. At the Law Office of Daniel Hunt, we can help you ensure that your estate will belong to the people you intend after you pass away. Make sure the probate process goes in your favor. Contact the Law Office of Daniel Hunt today to schedule your initial consultation.