Dying without a will: It sounds dire. What happens to the deceased’s assets? And who makes the decisions? Admittedly, the situation is more complicated than if the person hadn’t died intestate — the legal term for the will-less state — but, depending on the nature and size of the estate, it may not be so bad. Here are some of the steps you’ll need to take if a family member dies without a will, and what you can expect to happen.
If you have a copy of the will (but not the original)
If you lack the original, actual signed and witnessed will, but do have a copy of it — and are confident that it’s the true last testament of the deceased — you can opt for a Lost Will Proceeding before your local probate court or surrogate’s court, as some states call it.
The exact rules vary among jurisdictions, but basically, in this hearing, you present the copy, along with back-up testimony and/or affidavits from the lawyer who drafted the will, the witnesses who signed it, people who can verify the deceased’s signature. You have to show that you’ve exhausted all avenues to locate the original, and might even call witnesses — financial advisors, attorneys-in-fact (aka power of attorney), caregivers, friends — who can attest to the terms of the will, even in casual remarks (“Joe told me he was leaving the grandfather clock to his daughter.”) “It’s a trial, basically,” says Neil H. Reig, a Westchester County, New York-based estate planning and elder law attorney. “But there’s no guarantee it will work.”
Unfortunately, it often doesn’t. The overwhelming presumption among judges is that, if an original will is gone, it’s because the deceased tore it up or revoked it in favor of a new one. So they are reluctant to accept copies. The main exceptions are if the person died very soon after signing the will (making it unlikely there’s a more recent version), or if lost documents have become common occurrence after a community-wide calamity, like a hurricane or fire.
If there’s no will at all
If the copy isn’t accepted, or if there is no will in the first place, then you file to have an Administrative Proceeding (sometimes called just “Administration”). This procedure parallels going through probate, only it’s based not on a person’s will, but on the local laws or rules of intestacy.
First, the court appoints an estate administrator, based on statutory preferences; usually, the pecking order is the deceased’s spouse, then adult children, then parents. Like a will’s executor, the administrator is in charge of divvying up and delivering the assets to the heirs, who are called “distributees.” However, the administrator actually has little discretion or decision-making to do: He or she distributes the assets as dictated by the intestacy rules.
The exact terms vary from state to state, especially in community property states, but generally run along the same lines, Reig says. Typically, a surviving spouse receives 50% of the estate, and the other 50% is divided equally among children. Further down the line come the deceased’s siblings, parents and other relatives. Generally, only legal partners, spouses and blood kin can be designated distributees; the intestacy laws rarely provide for anyone else.
This is the aspect that gives dying intestate a bad name, sparking those hysterical warnings (usually from business-hunting, will-writing services) that “you lose control of your assets, your dying wishes are ignored!” The absence of a will “can be a real mess” if there are certain familial issues, like the guardianship of minor children, acknowledges Steve Giacobbe, CIO and Managing Partner of Accredited Wealth Management in Louisville, KY. Financially speaking, however, “someone may die intestate, but it’s not really that big a deal.”
For example, nowadays people often put their assets in trusts, own investments and property jointly with rights of survivor, or designate bank and brokerage accounts as Payable on Death or Transfer on Death. None of these things need a will to be distributed. Similarly, life insurance policies and retirement accounts, like IRAs and 401(k) plans, go directly to named beneficiaries, bypassing the probate procedure. If the remaining probatable assets are under a certain size, they may qualify as what the law calls a “small estate” — and can be settled in a simplified, no-lawyer-required filing.
But if these steps weren’t taken beforehand, or if the estate includes sizable, non- beneficiary-designated holdings (like art, jewelry or other tangible assets), you may be headed for court. As with probate, going through Administration takes several months – more, if there’s a lot of estate to settle and numerous directees to settle with. Trying the Lost Will Proceeding first might take an additional month, at least.
Even so, “before you go to all this effort, ask a lawyer if you really need to,” says Jim Worthington, a Louisville-based trust and estates attorney. Would the will’s bequests basically have dovetailed with intestacy’s dictates? Are the heirs pretty much in accord? If so, “it could be a moot point – you really don’t lose anything by not having a will.”
By Troy Segal
