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What Happens When No Will Exists, or it Cannot Be Found?

Posted on Sat Feb 23, 2019, on Estate Litigation

What Happens When No Will Exists, or it Cannot Be Found?

What are your options if you are an estate’s executor and are unable to locate a will?  Similarly, what if you believe the existing will is not valid? In general, the c will get involved and oversee the entire process. Having an estate lawyer to guide you through the process may be a good idea. To speak immediately with a lawyer in Central and South Eastern Pennsylvania or Southern New Jersey, call Klenk Law.

When the State Gets Involved

Many people do not write a will or write in a way that is legally valid. When it comes the time to settle and close their estate, the state comes in and sets out who will:

  1. Execute and administer the estate;
  2. Inherit any assets; and,
  3. Oversee the care of special needs or minor children, if there are any.

Who Will Be In Charge

When no will exists, knowing who the deceased person would have named to be their executor of the estate is not possible. What is certain is that someone must be given permission to take commence the management of the estate, resolve debts, and distribute the assets.

When a probate process is necessary, and it usually will be, a judge will name someone to fulfill the role of the executor. This person may also be referred to as the administrator or personal representative.

In most states, the following people will be the first choices of the executor of an estate – in order:

  1. The surviving spouse or legal domestic partner
  2. Adult children
  3. Parents
  4. Siblings
  5. Grandparents
  6. Extended family members

In a small number of cases, probate will not be necessary. In this case, informal procedures may take place to transfer any assets to beneficiaries. Usually, the court will name someone who was closest to the deceased person to oversee this task.

Intestate Succession

All 50 states have intestate succession laws. These rule dictate how a deceased person’s’ assets will be distributed. Intestate succession laws are not applicable to estates that include a will, trust, or other estate planning document.

In general, blood relatives, spouses, and legal domestic partners will be able to inherit the deceased assets under these laws. Friends, charities, or unmarried partners will not be eligible. If the deceased was married, it is usually the surviving spouse who will receive the primary share of assets, followed by the children. If there are no children, the surviving spouse will likely get everything. Distant relatives may be able to inherit the assets if no surviving spouse or children exists. In a rare case that absolutely no surviving family can be located, the state will inherit the assets .

If any of the above caused the death of the deceased, through a malicious act, or abandoned or abused their child, the state may bar them from receiving the assets.

Non-Probate Assets

It should be noted that there are certain assets that do not pass through a will. This also means they would not be affected by a lack of a will or intestate succession. These include:

  • Assets held in a living trust
  • Bank accounts held in joint tenancy
  • Real estate held in joint tenancy, or other assets
  • Funds in a retirement account, IRA, or 401(k) that named a beneficiary
  • Life insurance proceeds
  • Payable on death (POD) bank account

Regardless of whether or not a will existed, legal help is recommended. If you would like assistance from an estate lawyer, call Klenk Law.

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