Settling an Estate without a Will: The Probate Process

The last will and testament is the primary document used to determine the distribution of assets for a deceased person’s estate—but sometimes, there is no will to guide the process. When this occurs, there are a few standard procedures that are often employed to ensure that the estate is settled legally. The process is determined by the laws of the state where the person resided at the time of death, meaning existing assets will be distributed according to state law rather than the desires of the deceased person if there is no written record. This is why it is advisable to create a will to make sure specific wishes are carried out.

Tax Consequences

Property that passes to heirs (whether through a will or the authority of a court if a will is lacking) is typically subject to state and federal taxes. However, a will can provide instructions for paying taxes and debts so as to avoid placing that burden on the beneficiaries. Placing property in trust for loved ones is another way to lessen the amount of tax to be paid. A life insurance policy is another means of assisting with possible tax payments.

Legal Consequences

There can be considerable legal repercussions when handling an estate without the benefit of a will. For example, the probate court review process can be lengthy. The amount of time can vary depending on the state’s intestate succession laws and the size of the estate, often taking several months. In instances when courts distribute property, disputes sometimes emerge between beneficiaries, which can lead to expensive, drawn out legal battles. For instance, if the deceased person has children from a previous marriage who feel they have not received a fair portion of the estate, they could make a claim in court.

Assets Not Passed on By a Will

Although most of a person’s personal assets are passed to beneficiaries according to a will, many are not. This includes property that is owned jointly, often with a spouse, such as bank accounts and real estate. Other examples include life insurance policies, which pay out to a named recipient, property held in a living trust, money in an IRA or 401(k) with a named beneficiary, and property such as stocks with designated transfer-on-death (TOD) guidelines.

Creating a Will

The best way to ensure that property is distributed according to your wishes is to consult with an estate planning attorney and draw up a will that reflects your specific situation. A reputable probate lawyer can help you to draft a last will and testament that will enforce your wishes and ensure that your loved ones are protected. An experienced probate attorney can also advise you on the creation of living trusts and other strategies to simplify the probate process.

For help with every step of your estate planning process, contact Queens probate lawyer Richard Cary Spivack to set up a consultation, and get the professional assistance you need.