What if I die without a will? For the United States

What if I die without a will?  

Info for the United States

Dying without a will - known as dying "intestate" - means you have no say over who receives your assets, and can leave your heirs and the court system the complex and costly job of wrangling over who should get what.

Your assets go into what's called "probate" - an expensive and drawn out legal process which determines who inherits your estate, and can take anywhere from a few months to a few years, depending on how complicated the estate is.

So-called intestacy laws vary considerably from state to state. In general, though, if you die and leave a spouse and kids, your assets will be split between your surviving mate and children. If you're single with no children, then the state is likely to decide who among your blood relatives will inherit your estate.

Probate is a fancy term for the legal process that occurs after a person dies. The probate court system must first validate that the will is authentic, and then proceed to distribute the estate among the heirs. When a person leaves no will, the probate court must decide, according to the laws of the state, who gets what.

Probate is an expensive process and can take anywhere from a few months to a few years, depending on how complicated the estate is. If you want to spare your heirs the hassle of probate, there are a few ways to avoid the process, such as a revocable living trust.

http://money.cnn.com/retirement/guide/estateplanning_wills.moneymag/index6.htm

  What Happens When a Person Dies Without a Will?

By Katherine at Legal Language
Posted on 07/21/2010
In Legal Resources

Many people put off creating a will for many years, but what happens if you die without one?

Whether you are young or old, rich or poor, you should consider creating a will or trust. When a person dies without a will, an already difficult situation can become a complicated legal mess for the person’s loved ones.

The State Is Involved

When a person dies without a will, it is said that the person died “intestate.” Each state has intestacy laws in place which determine who is entitled to the deceased’s property and assets.

While intestacy laws vary slightly from state to state, they generally follow the same path, especially for smaller estates. If someone dies without a will but owns no property and has assets of less than $100,000, no formal court proceeding is required. Family members can file a Declaration of Small Estate through a bank or even the DMV and are then allowed to collect and split the deceased’s assets.

If property is involved, however, collecting the estate becomes more complicated.

Property & Relationships Are Involved

When a person dies without a will and owns property, the process varies considerably based on the deceased’s relationship status.

If the person who dies without a will is single with or without children, the process is generally easier than if the deceased is married or has a domestic partner.

What If the Person Who Dies Without a Will Is Single?

If a person who is not married dies without a will, the person’s estate goes to his or her child or is split evenly between multiple children.

If the person who dies without a will has no children, then the estate goes to his or her parents. If the parents are deceased, the estate is split among siblings.

What If the Person Who Dies Without a Will Is Married?

State laws vary far more widely if a person dies without a will and leaves behind a spouse or domestic partner, children and other relatives.

If there are children in the relationship, they may inherit up to two-thirds of the estate while the spouse receives the remainder.

If there are no children in the relationship, the surviving spouse may inherit the entire estate — or, depending on the state, as little as one-third of the property and assets, with the rest going to the parents and siblings of the deceased.

Excerpts from http://www.legallanguage.com/legal-articles/dies-without-a-will/

Dying Without a Will in Canada

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Written by The Editors

When someone dies without a will, or a will cannot be located, or is located but is deemed invalid, the person is said to have died intestate. Provincial laws deal with this situation, as each province has a potential interest in the deceased person's estate. The assets owned by the deceased at time of death are known as that person's estate. Any debts the person owed need to be paid out of the estate, and anything remaining (the "residue" of the estate) can be divided among the heirs of the deceased person. Note that taxes are a debt. So far, this is the same as what happens when someone dies with a valid will. The difference is, when you die with a valid will, distribution is usually done by the person you appointed as your executor, according to the wishes you expressed in your will. Administration When a person dies intestate, family members may apply to the courts to act as the estate administrator (sometimes know as the estate trustee). If the court provides a certificate of appointment, the administrator must identify and settle all debts in the estate. If anything remains, the administrator must then determine how to divide the residue and must try to locate and obtain the agreement to the division from legal heirs (the usual order or priority is: spouse, children, parents, brothers and sisters, and more distant family such as nieces and nephews). If no member of the immediate family of the deceased is willing to act as administrator, or none is able to take on the task, then the court may appoint a trust company to undertake the task. Problems If the assets of he deceased person have some value, the risk of conflicts among potential heirs is high. In the absence of a will, the individual acting as the administrator of the estate is likely to be confronted with emotional claims ("I was always her favorite", or "He promised me I would get ...") and there is a strong possibility that cooperation in the process will not happen. Solution Write your will! We all like to think we will live a long time, and many of us have a superstitious fear of preparing a will. Reality, however, dictates that accidents and sudden, fatal illness will take some people much sooner than anyone would have predicted. Once you start acquiring assets of value — a home, a pension plan, investments, and similar — you should prepare your first will. Review your will once a year after you write it (a good time is when you are doing your annual tax return and thinking about your assets), and update it as needed. A small effort on your part may save your family a lot of unnecessary pain and conflict. http://www.self-counsel.com/news/law/wills-and-estates/256-dying-without-a-will-in-canada.html

Being an Executor

Being An Executor is 

a Very Big Job

What IS an Executor????

An executor is the person named in a will to carry out the directions contained in the will.  The executor is responsible for settling the person's affairs after death.  The person's estate passes temporarily to the executor.

The executor locates all of the person's assets, pays the funeral costs, debts and taxes, and then distributes the remaining money and property according to the instructions in the will.  The executor is accountable to the beneficiaries.  For example, the executor must let the beneficiaries know when he or she is applying for probate, and must keep records and give all beneficiaries a final statement of accounts.

Being an Executor

Being an Executor takes time, energy and careful attention to detail.  An executor can get help from friends and family members and also from a lawyer or accountant if necessary.  However, the executor is the person who is legally responsible.  An executor will make the decisions, watch over everything, and keep accurate records.

How difficult is it to be an Executor? 

Your job as an executor may be more difficult if:

• There are many beneficiaries

• The person who died owned a business

• The person had investments and debts

• The will includes a trust

• The will is challenged by someone who feels left of of the will

  

Do I have to act as executor?

If someone asks you to be an executor and you don’t want the job, you can say no.  You also can assign after the person has died.  However, the law says that in order to resign in this way you must not have intermeddled in the estate.  If is best to decide early on if you do not want the job, before you make decisions that affect the estate.

If there is a co-executor, he or she can take over.  You must sign a “Renunciation of Probate” form.  This form says you are resigning and you have not interfered in the estate.

If there is no co-executor, the alternate executor can take over.  If there is no alternate named in the will, someone will have to apply to become administrator of the estate.  If is best to agree to act as executor only if you feel you can do the job well.  Being an executor takes time.

Ten Steps the Executor 

may take when the person dies

The order of the steps will depend on the situation.    

1.  Locate and read the will.

     The will may have instructions about the person’s wishes for organ donation, burial or cremation, and/or funeral or memorial service.

    When you agree to act as an executor, make sure you have an up-to-date copy of the will.  Keep it in a safe place where you can find it easily.  Keep a written record of all your activity as executor.  Keep all receipts and financial records of the estate.

    Many people keep the original will in a safety deposit box.  Try to find the keys and tell the manager of the financial institution that you are the executor and are looking for the original will.  If you can’t find the key, the box can be drilled open for a charge.  Some people leave the will with their lawyer or Notary Public.  However, problems can arise if they have not kept in touch with the lawyer or Notary, who may have died, or moved or sold the business.

     If you can’t find the will, check with the Wills Registry at Vital Statistics.  Vital Statistics will check to see if the will was registered and where the wills notice says the original will is kept.  They will send you a formal reply that you need for probate.  (The above pertains to the province of British Columbia, Canada.  Check with your province or state for information).

   2. Arrange for burial or cremation.

Legally, the executor is responsible for arranging burial or cremation.  Often people leave instructions about what they want.  If there is any question about what the person wanted, the executor has the legal authority to decide.

   3. Protect the assets

As the executor it is your responsibility to protect the assets.  For example, you may want to make sure they are insured and safe.  You may wish to place valuable papers, cash or jewelry in a safety deposit box.  You may need to change the locks on the person’s house.  If the person owned a business, you will need to arrange for its ongoing and proper management.

   4. Obtain the death certificates

The Division of Vital Statistics handles this matter.  They provide the forms you will fill out and return.  (We at Telford’s Burial & Cremation Centre can do this for you)  You may want to order more than one death certificate so you can deal with more than one institution at a time.  There is a fee for each death certificate.

   5.  Probate the will

Probate is the procedure that confirms the will can be acted on and that you have the authority to act as executor.  If the person owned real estate, probate is required.

Check with any institutions that hold the person’s assets to find out what they require.  Sometimes financial institutions will not release the person’s money without confirmation of probate.  It depends on how confident staff are the you have the authority to act.  If they know you and your relationship to the deceased, they may be satisfied just to see the death certificate and the will.

                                                                                                             

    6.  Get probate forms

The Probate Registry does not provide forms.  They will give you a list of forms you need, and refer you to the Self Counsel Press publications, Probate Guide for BC and Probate Forms.  These forms are available from public libraries, and sold at bookstores, legal stationary stores, or the Self Counsel Press Office.

You will need to sign some of the documents in front of a lawyer, Notary Public, or “commissioner for taking affidavits.”  All court registries  have a ‘commissioner for taking affidavits.”  Some community groups do as well.  When you sign, it means you are swearing or affirming that the information you are providing in the document is true.

   7.   Notify the beneficiaries

You must notify all the beneficiaries named in the will and anyone else who may have a legal claim on the estate such as a common-law spouse, children, or a separated spouse.  You don’t need to have a gathering to “read the will”, like in the movies.  However, you must send them a copy of the will and a copy of your Notice of Intent to Apply for Probate.

  8.  List the assets and liabilities

The “Statement of Assets and Liabilities” is one of the forms you will fill out for probate.  It has four parts:

·    A list of property (the person’s home);

·   A list of personal property (cash, jewelry, furniture, pension and death benefits);

·   A list of debts; and

·  A distribution list (beneficiaries names, addresses, relationship to deceased and gifts they are to receive.)

Do not list assets that are owned in joint tenancy or that name a specific beneficiary, such as an RRSP.  These are not form part of the estate.

   9.  Apply to probate the will

In most cases, you don’t actually go to court to get probate.  You need to fill out specific forms.  Then take them, along with the original will and the reply from the wills search, to the Probate Registry of any Supreme Court of British Columbia.  (check your local provincial or state.)

You will need to pay a fee when you file the documents. 

 10.  Obtain probate

After the registry staff determine that your forms are in order and the fees are paid, you will get a “Grant of Probate.”  This is a legal document that allows you to deal with the estate.  If your application is rejected, the staff will let you know the reason.  You can correct the problem and re-apply.

More detailed and in-depth information  about the executor’s duties can be found on our website's link

http://s67.funeralhomewebhosting.com/content.php?sid=13156&ssid=35053 under Resources for Organizing Your Estate. 

Excerpts from the People's Law School booklet, "Being an Executor", 3rd edition 2012.  www.publiclegaled.bc.ca  

 also see Clicklaw www.clicklaw.bc.ca