Probate is a legal process which involve the validation of the will and last testament of the testator. The process commences after it has been filed with the probate court. After the court validates the will of the deceased, the executor can now go ahead to distribute the estate of the testator among his heirs and beneficiaries. The executor is named in the will.
Depending on the estate plan, there are assets and estates which do not go through the probate process. This can be due to several reasons, for instance the asset has a payable on death (POD) designation or transfer on death (TOD) designation. These kinds of estates will go straight to the designated beneficiaries after the death of testator.
Intestate
Normally, when a person die his estate is distributed among his heirs and beneficiaries according to how it is spelt out in his will. But in some cases a person might die without having a legal will. The person is said to have died intestate.
Intestate refers to the death of a person without a legal will. This term can also be used to describe a situation whereby the will of the deceased person is declared invalid by the probate court. When this is the situation, the probate court determines what happens to the estate of the deceased person. This will be based on the state laws.
The process begins with the probate court by appointing an administrator which will be in charge of the estate of the deceased person. The administrator who has been appointed by the probate court will acts as the executor (the executor is a person named in the will he is in charge of the distribution of assets among the heirs of the testator).
Roles of the administrator include
Identifying the probate assets of the deceased: The first thing the administrator does is to put together a list of all the assets which are owned by the deceased. These could be a tedious process if the testator’s estate is a large one. The next thing will be to identify the assets which will go through the probate process and also the non-probate assets.
Paying of bills and taxes: It is the duty of the administrator to settle estate tax and all pending bills
Settling of creditors: Paying and settling of creditors which the testator owes is the duty of the administrator He settle the testator’s debt using funds from the estate This requires the expertise of a professional as most false creditors might come up claiming that they are owed by the deceased.
Locating the heirs and beneficiaries of the deceased: The administrator locates the beneficiaries of the testator. These could include his or her parents, siblings, children and spouse (if any).
Distributing the estate among the beneficiaries based on the state’s law: After successfully settling the creditors and locating the beneficiaries and heirs of the testator, the administrator goes on to distribute the remaining assets among the heirs and beneficiaries in accordance with the state’s law. This process is known as called intestate succession which is the order in which heirs and beneficiaries inherit from a decedent’s estate when there is no estate plan.
Not having a will could be a really bad idea for some reasons
Planning opportunity: Without a will, your estate will be shared among beneficiaries as the court deem fit. These beneficiaries might not be persons whom you would want to partake in your inheritance. Also some persons might be left out of your inheritance.
Having a will gives you the chance to include certain person into your inheritance. For instance it will give you the opportunity of giving to orphanages, the less privileged, a friend and even a distant relative. Without a will, the court won’t include these persons in your inheritance.
Prevents defrauding of your estate: When you have a will, your will specify in it who your creditors are and how much you owe each of them else, false creditors might come up with claims that you owe them while those you actually owe might as well come up with false claims about the amount you owe them.
Seeking help from professionals
The process involved in intestate could be a bit complicating when it is being done without the guidance of a professional. Our attorneys are always available for consult and hire.
FAQ
Question: Without a will what happens?
Answer: The court of law determines how the estate will be distributed among the deceased heir
Question: If there is no will can the spouse of the deceased become the executor?
Answer: On their own, No! Except if the court appoints them.
