Estate planning is an important process that includes setting up trusts, wills, and advanced directives. No matter your age or asset level, having a will is beneficial. According to a recent survey, nearly 33 percent of Americans have no estate plan at all, and that includes a basic will. With over a third of the country unprepared, it is likely that you have a parent or family member who will die without a will. You may be wondering what happens if your family member dies without a will?
Depending on the state in which your loved one died, the process will differ. However, many states have a similar probate process. Typically, this includes determining what to do with community property, common law, other assets, and a host of other more nuanced rules and regulations. Having your affairs in order will ensure that the court and your family follow your wishes. When it comes to your estate, don’t leave these important decisions up to the court. Take the time to write them down before it’s too late.
Dying Without a Will (Intestate)
Dying without a will is known as dying intestate. The decedent’s state law determines the line of succession for who inherits their property and assets. This is intestate succession. Without a will, surviving family members will have to abide by decisions made in probate court.
If your loved one passes away and you can’t find a will, first contact any lawyer or financial advisor who they may have worked with in the past. There may be an old will on file you didn’t know existed. Next, check if there is a safety deposit box in a bank or a safe in their home that may contain the will. A home safe may require a locksmith to break. If you are not listed as the signatory on a bank deposit box, you must adhere to state law to gain access to the box. While some states permit a special petition to gain access, other states require a full probate petition. The next step is to prepare for the probate process.
Probating a Will
No matter how old a will is, it can be probated. If there is no will, you’ll want to compile a list of your loved one’s assets, tax returns, and financial statements. Pay particular attention to any financial statements covering the date and month of their death. Look for lost or forgotten accounts. Asset valuation for probate and estate tax returns hinge on date of death valuations. Plus, a significant number of assets pass outside of a will, including:
- Life insurance proceeds
- Funds in a 401(k), IRA, or retirement plan
- Bank accounts, real estate, and other joint tenancy assets with rights of survivorship
- Assets in a payable on death (POD) bank account
- Stocks and securities in a transfer on death (TOD) account
- Vehicles or real estate with a transfer on death (TOD) title document or deed
If you locate the deceased’s information for these account types, you can claim your inheritable assets from the associated institution. These accounts can transfer into your name. They can also give you extra funds if they are required to finalize the estate.
Executors and Rules of Succession
Other property not addressed in a will or a trust will go through probate and follow state intestate succession law. The state law will determine eligible candidates to fill the personal representative (executor) role in the absence of a will. Typically, the surviving spouse or a registered domestic partner is the first choice, followed by adult children, parents, and siblings.
What if the probate court judge wants to name you as the personal representative of an estate? Be aware that there may be complications in resolving the estate depending on its size, state law, and the complexity of their financial situation. If the estate is modest in value, it poses far fewer challenges. Alternatively, a larger estate may have complex finances, many assets, and no estate planning.
Accepting the Executor Role and Finding Professional Support
Before you accept the Executor role, ask yourself some basic questions to determine if it’s the right move for you. If you are likely to inherit the bulk of the property, you’ll have a strong incentive to serve as a personal representative. If you won’t receive much inheritance and you live far away, this can lead to lack a of rapport with other family members and potential conflict among heirs. Further, if you do not have the time to perform the duties adequately (especially for a more complex estate), it is best to decline the executor role.
If you have questions about the probate process in Nevada, contact Michaelson Law. Our attorneys are experienced in probate court and helping clients navigate the process with ease.