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What happens if I don't have a will?

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The first thing to know if you don't have a will is that there's a legal term for that: intestacy. In cases of intestacy, your surviving heirs will need to petition the court to settle your estate via what's called an administration.

In that process, there's an administrator named, who is charged with the duty to settle your estate (i.e. pay debts and distribute assets). An administrator essentially plays the same role that an executor plays in an estate with a will., except that an administrator is typically overseen by the court.

After the appointment of an administrator, the estate begins to move through the process of either an independent or dependent administration. The court determines the type of administration based on many factors, some of them being: The size of the estate, the qualifications of the person calling for the administration, and how much or how little the division of the estate is being contested. Although in both an independent and dependent administration, the administrator files an inventory of the estate and sends notice out to creditors, in an independent administration the administrator moves more freely through the process, and in a dependent administration, the permission of the court is required to act. Therefore, a dependent administration is a lot more costly, and requires a lot more paperwork.

One of the advantages to a will is that you specifically name an executor you feel will run the process as efficiently as possible and with little court involvement. Once left up to the courts, your heirs can certainly make their positions known but it'll be up to the judge what track you're on (i.e. dependent or independent as described above). Another consideration is that in a number of administrator cases, the administrator has to put up a bond, whereas a will can specify that there is no need for a bond.

It's hard to say how long the entire estate administration process can take. The administrator, like an executor, gets authorized by the court to help track down what assets and debts are remaining-depending on the complexity of the estate and the organizational skills of the person who left the estate, this could take anywhere from weeks to years.

The court has due diligence to locate potential heirs, usually through an ad litem attorney appointed by the court. Once all the beneficiaries are located, the administrator will follow statute to divide property amongst the survivors as allocated in the laws of inheiritance. You are probably more familiar with the terms" community property" and "separate property" in the realm of divorce, but those same property classifications apply to a decedant's assets upon death and the administrator will need to take this into consideration in the distribution of the estate.

As you can tell, probating an estate without a will is more complicated and less private than probating with a will. The cost, time and overall sanity of your heirs can be spared by taking the simple step of sitting down with an estate planning attorney and discussing your options. I advise all my clients, regardless of the size of their estate, to draft not only wills, but there are also other estate planning documents and tools that can save them and their heirs from this headache. (link to article).

Still, many people never take the time to set up for their assets after death and for those of you who have loved ones die without a will, I encourage you to sit with an attorney to discuss the options for closing your loved one's estate. I am happy to help you with this endeavor and I'm only a phone call away.

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