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What Happens if You Die Without a Will?

Legal Assistant Wills

Death is often a taboo subject for most people. It’s uncomfortable and downright scary to even think about. The unfortunate reality is that it’s a part of life we can’t escape, and sadly, the one part that we have the least amount of control over.

That’s why it’s important to have all your affairs in order, to avoid causing turmoil for your loved ones after you’re gone. It gives you some semblance of control over what happens to your estate, your children, and your pets. You get to share out your assets among those you hold dear.

But, what if death catches you off-guard? What happens if you die without a will? Here’s everything you need to know about it.

Intestate vs Testate – What’s the Difference?

First, let’s look at the intestate definition. Contrary to what it sounds like, intestate isn’t a road that links two states. It refers to dying without having left a legal will in place or dying intestate as it is commonly called.

When this happens, the intestate succession laws in your state kick in to determine how all your assets – real estate, money, family heirlooms, and pets – will be given away and by whom. It happens through a process known as probate.

On the other hand, testate refers to the existence of a valid will at the time of an individual’s death.

last will and testament

How Does Probate Work Without a Will?

Probate is the legal process that occurs after an individual dies to ensure that the deceased’s property and assets are given to the correct beneficiaries. It also ensures that any outstanding debt and taxes are settled in full. This addresses the question of what happens if a deceased person owes taxes – whether or not they died having written a will.

However, keep in mind that the Collection Statute Expiration Date (CSED), as provided in the Internal Revenue Code, sets the statute of limitations for tax collections at 10 years. So, if an individual dies with unpaid taxes, 10 years after the date the tax liability in question was assessed, the IRS has no authority to pursue tax collection at that point.

The probate process is quite straightforward when there’s a will in place. All the probate court does is check that the will in question was properly signed and witnessed to ensure its validity and legitimacy. It then oversees the asset division process to make sure that it is carried out as per the decedent’s wishes. This is done by the named executor.

Probate without a will, on the other hand, is more complex. The judge first has to appoint the personal representative. This individual serves the same role an executor does when there’s a will in place.

The court then has to identify all the properties and assets that belonged to the deceased and then carry out a valuation process to determine the estate’s total value. It also has to find all the creditors and potential intestate heirs before fairly distributing the property.

Property That Does Not Need to Go Through Probate

house keys on human hand

Even in the absence of a will, some items don’t need to go through the probate process. Here are some of the most common ones:

  • Beneficiary-named property – Any property that already has a beneficiary named in the document doesn’t go through probate. Life insurance is one such example. Only the beneficiaries listed on the policy or deed are entitled to the payout from it.
  • Jointly held property that has survivor’s rights – If the deceased held a jointly owned property with someone else, the surviving party named on the deed would now have sole ownership of the property in question.
  • TOD and POD items – Using terms like “Transferable on Death” and “Payable on Death” in paperwork for retirement accounts, stocks, bank accounts, and even vehicles ensure that these items by-pass the probate process and go straight to the listed beneficiaries.
  • Property placed in a living trust – Any property placed in a living trust is owned by the trust and not the deceased. So, the items there are not subject to the probate process.

Property That Has to Go Through Probate

Generally, if the following items are already dealt with in your will, the probate process becomes a lot easier since you’ve addressed who exactly will get them. The judge plays more of an oversight role.

On the flip side, if there were no will in place, the judge would then step in to assist the personal representative in deciding what happens to them.

purchase house
  • Sole ownership property – When the property in question only has the deceased’s name listed on the title or deed, and there’s no TOD or POD, the probate court would have to determine ownership.
  • Investment property with a partner – This occurs when individuals are listed as “tenants in common.” In such instances, the probate court has to determine what happens to the deceased’s investment share.
  • Non-titled property – This refers to items that don’t typically have any paperwork showing ownership, but it would be presumed that they belonged to the deceased. These include clothing, furniture, appliances, and any other household goods. The probate judge would have to distribute them among the beneficiaries.
  • Inheritance once the beneficiary has died – If an individual died with a will that left everything to their spouse, but the spouse in question died before the will was updated, the probate court would have to step in to decide how the estate will be distributed among the surviving beneficiaries.

Protect the Ones You Love

The probate process can be quite complex, and the laws that govern intestate succession vary widely depending on the state you live in. A will makes everything simpler and gives you peace of mind knowing that your loved ones will be well taken care of even after you’re gone.

If you’re wondering – Do I need a lawyer for a will – the answer is, no, you don’t. There are countless DIY kits and estate planning software available online.

Nonetheless, it’s always a good idea to hire a probate lawyer to help you draft a will that meets the legal requirements of your state and provide you with useful estate planning strategies that work.

If you have any legal queries, chat online with a Laws101.com attorney today.