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What happens if someone does not make a Will?

When a person dies without a Last Will and Testament, the probate court is responsible for determining how to distribute their assets and settle their debts. This is often an orderly process, guided by specific laws in each state. In general, however, probate for an estate without a Will begins with the appointment of an administrator or personal representative, who functions a lot like an executor would for an estate that has a Will.

Once an administrator has been selected, that person is tasked with getting in contact with the deceased individual’s legal heirs. This person may also be responsible for determining the value of the property owned by the deceased person at the time of death. This inventory of the deceased person’s assets and market values is typically intended to be filed with the probate court. Administrators also have responsibilities centered around paying debts and distributing the estate’s assets, typically as guided by state law.

How does the state decide who gets what?

Specific requirements for the process vary from one state to the next, as each state has its own distinct succession laws. The basic principle of asset distribution is that those closest to the deceased individual are the first to receive assets. Succession lines are often easy to determine, as many people have spouses or children at the time of their death. In some cases, however, it may be necessary to have the estate split into equal shares, or to locate distant or estranged relatives.

The main exception applies to jointly held assets and joint bank accounts, which generally pass to the other person named on the account regardless of the Will or lack thereof. Additionally, assets held with the right of survivorship may grant ownership even when a valid Will is lacking. 

What happens if a Will is declared invalid by a court?

When a Will is declared invalid, the probate court is likely to proceed as if there was never any Will in the first place. There are many reasons for a Last Will and Testament to be declared invalid. If these documents are not signed according to state law requirements, the risk of a contested or invalid Will can increase dramatically. According to many state laws, to be valid, Wills are required to have been completed and signed in the presence of multiple witnesses. 

A Will can also be challenged when it is believed to have been made under undue influence or while the person could not understand what they were doing. Specific bequests can also fail, even if the Will itself is largely upheld when the assets no longer belong to the deceased individual. This sometimes occurs because the asset in question has been sold, given away, or been destroyed before their passing.

A new Will is assumed to supersede any prior Wills, so that the terms of the prior Will and any Codicils no longer apply. Although the new Will overrides the original, it is important that clear language revoking the prior Will is included to ensure the enforcement of the updated Will. If the new Will is declared invalid, the most recent valid Will may apply.

If my parents pass without making a Will, who gets what?

While inheritance laws and line of succession can vary from one state to the next, it is common for children of the deceased person to get priority after the deceased’s spouse, and before other family members.

In many cases, without a Will, the spouse or children inherit everything. Bereaved spouses frequently inherit the full estate, even if they have descendants from their marriage with the deceased person.

Who is responsible for remaining debts?

When someone dies, their remaining debts become the responsibility of the estate. If, however, somebody else co-signed for the debt, the co-signer may still be responsible for it. There are some situations in which remaining debt could potentially go unpaid, assuming that nobody else took responsibility for it by co-signing and that there is not enough money in the estate to cover it.

It is never safe to assume that any remaining debts have disappeared. In community property states, surviving spouses may be required to use jointly held property to cover the debts of the deceased spouse. Typically, however, it is the job of the administrator to determine how and when to handle claims from creditors, including how related debts might be paid from the estate. If you’re the administrator of an estate, it’s important to diligently address the issue of debt.

Can I still inherit assets from a family member who passes away without a Will?

Your ability to inherit from a family member without a Will largely depends on your relationship to that family member and whether, based on state law, anybody else qualifies for inheritance that is more closely related.

If the decedent had no children or spouse, it is possible that their siblings, nieces, or nephews may inherit assets. In the Uniform Probate Code, which most state laws are based on, classes of relatives who may potentially inherit are designated in the following order:

  • Spouse.
  • Children and grandchildren.
  • Parents.
  • Siblings, nieces, or nephews.
  • Grandparents.
  • Aunts, uncles, or cousins.

When there are multiple individuals in these categories, the inheritance is typically divided into equal shares. For example, when there is no spouse, children, or parents, the entire estate may be divided into equal shares between the siblings of the person who died. If, however, there are no siblings, the estate will be divided among nieces or nephews, and so on. In rare situations, when the probate court is unable to find any eligible heirs, it may be possible for an estate to go to the state government.

If you have more questions about Wills, or helping a loved one with estate planning, reach out to a Rocket Lawyer network attorney for affordable legal advice.

This article contains general legal information and does not contain legal advice. Rocket Lawyer is not a law firm or a substitute for an attorney or law firm. The law is complex and changes often. For legal advice, please ask a lawyer.

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