More people die without leaving a will than those that die with one, so first know you are far from alone. This situation is the norm. The legal term is “dying intestate” which means heirs will be identified through the state’s rules of intestacy.
The first two items for someone picking up the pieces after a loved one passes on without a will are: 1) have the court appoint an administrator, and 2) figure out the size of the estate. For small estates (in California the threshold is $150,000) assets can be transferred to heirs identified by state law without passing through a lengthy, formal probate court process.
Before you do either, consider contacting an attorney licensed in the state where the deceased resided. Legal counsel ensures you are covering all your bases: staying aligned with the state probate laws, taking appropriate action to meet deadlines, and protecting your family’s interests. Whether the estate is large or small, the advice of a lawyer can save you time and money.
The court appoints a person to be in charge.
In absence of an executor named by a will, the court uses state law to identify an “administrator” (or in some states, “personal representative”). They are chosen based on a predefined order outlined in state law, each state with their own subtle differences. In California, for example, state law defines this order as spouse (or domestic partner), children, grandchildren, other descendents, parents, siblings… all the way down to creditors.
The administrator gathers assets, keeps them safe, pays off debts and taxes, closes accounts, and distributes the remaining funds to heirs in accordance with state intestacy laws. It’s an important job and not without risk; this person can be held financially responsible for errors like accounting mistakes, or the failure to adequately secure the deceased’s property.
Determine which assets are exempt.
In the process of gathering and organizing the deceased’s assets, note the items that get passed along independent of the court, like property owned jointly or accounts that are payable-on-death with a named beneficiary. Sometimes a person has left no will, but has done enough other planning so that the majority of their assets are distributed or re-titled, leaving the remaining estate smaller than the minimum threshold required for the formal probate court process. Even if not, you still want to get this right.
It may take some detective-work to locate the documents establishing co-ownership or beneficiary designation. Items that are passed along to heirs independent of the intestacy rules include:
- life insurance proceeds
- assets held in joint tenancy (like real estate or bank accounts)
- property held in a living trust
- retirement accounts, 401-K, or Roth IRAs with a named beneficiary
- funds, stocks, and securities that are “payable-on-death” or “transfer-on-death”
- real estate or vehicles with “transfer-on-death” deeds or titles
Expertise during a family crisis is valuable.
Psychologists rank the death of a spouse or loved one as the most stressful event of our lives: worse than getting divorced, losing a job, or going to jail. Grieving the death of a family member can impact our ability to function, focus, or complete tasks.
Probate court can be complicated. If you have suffered the loss of a family member who left no will, why take on the added pressure? The professionals at The Law Offices of Jeffrey Lohman have the knowledge and expertise to guide and support you through the process of settling your loved one’s estate. Get help by contacting us today.