A lot of individuals don’t want to think about their own passing, but if they want a say in what happens to their assets when they do, it’s important to take the time to create a will.
Creating a will should be deemed a priority so you can have a say in what happens to your assets when you pass away. If you pass away without a will, the repercussions range from minor annoyances such as postponements to added strain to your loved ones.
What happens if there is no will?
Passing away not having a will, or passing away intestate, is going to mean that assets are not going to necessarily end up where you wish them to. When you have joint financial institution accounts or accounts with an appointed beneficiary, those are almost always going to transfer systematically. It is highly suggested meeting with an estate planning attorney to best safeguard your assets.
When you are the owner of financial assets with a beneficiary, for instance, a retirement account, specific pensions, and/or particular financial institution accounts, those can pass to a beneficiary without being probated.
Furthermore, real estate owned in joint tenancy with survivorship is going to systematically pass on to your spouse but forewarns that other real estate shared-ownership agreements are not going to. Nevertheless, should you own property with someone as joint tenants in common, your portion of that property cannot be passed to the co-owner without being probated.
Every state has their own intestate succession statutes. In a lot of places, the estate systematically transfers to the decedent’s spouse and, for single individuals, to any child(ren) or to the parents. There is always a chance of hindrance.
The problem of intestate succession is some assets might have to be ‘opened’ by a court. Meaning that financial institution accounts in one spouse’s name is not automatically going to go to the other spouse when its intestate succession. There is going to need to be an administration through probate court first.
What is probate?
Probate is the method that the court uses to distribute the decedent’s estate. This applies to those that have wills and those that don’t. Probate can be expensive and is public.
This can be a public and costly process subject to the dynamics of the family and valuation of the estate. In California, the expense of probate fees is tied to the worth of the estate, and as an example an estate valued at five hundred thousand dollars is going to have probate costs of eleven thousand dollars, respectively.
There is not a way to completely avoid probate because all estates are required to go through probate court, but with a will and establishing joint accounts can help simplify the process. Probate, with a will, provides the decedent with management of over how their estate is overseen.
When creating a will, you’re basically letting the probate court know what you wish to happen and who you want in charge. When you pass away not having a will, the court must construe what you would have wished to have done and, since you haven’t named the individual or organization, the court must consent to whoever has come forward. Nevertheless, suppose there are several individuals? What if there’s a challenge as to who needs to serve? Suppose there’s a contest in respect to who the actual beneficiaries need to be?
Other thoughts when creating your will
For some, a living trust is an innovative way to manage your assets while you are still alive and eventually avoid as many probate issues as possible for those you leave behind upon your demise. There are two kinds of living trusts: revocable and irrevocable. Whereas the latter gives another individual control over your estate while you are alive, the former retains your control.
For things that do not allow beneficiary designation, consider establishing a revocable living trust to circumvent the probate process. Real estate is a very favorable asset to put into a revocable living trust to circumvent probate.
Another aspect in establishing your will could be minor children or any debilitated dependents. Disregarding creating a will means relinquishing control over who is going to care for your children upon your passing.
Not having a will, the appointed guardian is going to have management over any inherited assets. Any assets that pass to minor children would be retained and overseen by their guardian—that might mishandle them—until your child is no longer a minor, at which point your child would have total access and management of your assets.
Creating a will might not be an enjoyable experience, but doing so is required for your wishes to be undertaken following your demise. Everyone is going to pass away, and if you pass away without a genuine will, you forfeit control of your estate to somebody else, perhaps someone you would not otherwise want to have such control. By creating a will, you
What happens if you die without a will? LegalZoom. (n.d.). Retrieved April 28, 2023, from https://www.legalzoom.com/articles/what-happens-if-you-die-without-a-will
Moshier Law Offers Estate Planning in Scottsdale, AZ
Moshier Law services all of Phoenix and Scottsdale, Arizona. Jennifer and her team of professionals seek to resolve Family Law cases efficiently with your goals in mind.
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