What happens if I don't have a Will or a Living Trust?
The legal term for dying without a Will is dying intestate. If you do not specify through a valid Will or Living Trust who will receive your property, then state law controls and generally distributes your property to your spouse and/or your closest heirs. This may or may not be what you intend. By failing to appoint either an Executor of your Will or a Successor Trustee to carry out your wishes, the State can appoint anyone to be the administrator of your property, and the administrator may have to pay certain fees or post a bond at the expense of your estate, before he or she can begin to distribute your assets.
Furthermore, if you fail to nominate a guardian for your minor children, the State could appoint someone you do not trust as their legal guardian.
What is Probate?
Probate is a legal proceeding to administer the estate of someone who has died, and to see that claims for debts, expenses, and taxes are properly paid, and that the remaining estate is distributed to the decedent's heirs or beneficiaries under the terms of the decedent’s Will or state law. A probate proceeding takes place in the probate court of the county where the deceased person lived.
A probate requires the preparation and filing of legal documents, an inventory and appraisal of the assets of the estate, the preparation and filing of income tax returns, an accounting of funds, and the final transfer of all assets to the decedent’s heirs and beneficiaries. The probate proceeding is supervised by the Court, and is a matter of public record.
What does Probate involve?
Probating an estate requires the appointment of a person to conduct the administration of the estate: the Executor or Administrator.
Responsibilities of the Executor or Administrator:
* Caring for all property of the decedent
* Receiving payments due the estate, including interest, dividends,
and other income
* Collecting debts, claims, and notes due the decedent
* Investigating the validity of all claims against the estate and paying all
outstanding obligations including federal, state, and local estate and
income taxes
* Distributing the assets of the estate to the heirs or beneficiaries
Non-probate property passes directly to a named beneficiary, survivor or successor in interest, independent of any probate proceeding.
Property not included in probate:
* Property held by the decedent and another as Joint Tenants with Right
of Survivorship
* Property held in a Trust
* Accounts that are payable on death or will transfer on death to a
named beneficiary
* Insurance or retirement benefits that are payable to a named
beneficiary