When a person does not have a last will and testament (or will) explicitly stating what should happen with their property and assets, it can create confusion about how to handle the estate if the person dies. When you find yourself in such a situation after the passing of a loved one, be quick to contact an Illinois or Indiana estate planning lawyer for assistance resolving these important issues.
In most cases of death without a will, the estate will need to go through probate court, and this process can become adversarial in some families. Legal representation is vital for preserving certain rights and ensuring favorable outcomes.
A person who dies without a will is said to die “intestate,” and the person who dies is known as the decedent. Speaking very broadly, a decedent’s property will be distributed to their heirs during a probate court case according to state regulations after any required debts and taxes have been satisfied. However, this may be different than how the decedent would have liked their assets to be divided, which is one of many reasons why creating a valid will is so important. Here are a few other important points to consider:
State distribution guidelines vs. personal wishes – If a decedent had a spouse and two children, the probate court could determine that the spouse is entitled to half of the money from the estate and the other half should be divided equally between the two children (although many factors will determine the final distribution). If the state’s method for distributing your assets is not aligned with your wishes, a will or other estate planning tools could give you more control over these decisions.
Naming an administrator – Another important consideration is who will administer the estate. If there is no will, a probate court will assign an administrator to settle a decedent’s estate. An administrator will be responsible for tasks like gathering the deceased person’s assets, paying bills, and distributing the estate property to beneficiaries once the probate process is complete.
Assets not subject to probate – Certain assets that do not pass through your will are also unaffected by intestate succession laws. This may include property in a living trust, life insurance proceeds, funds in an individual retirement account (IRA) or 401(k), property the descendant owns with another person in joint tenancy or tenancy by the entirety, and much more.
Considerations for family relationships – When a person dies with children or other descendants from them and a surviving spouse, the surviving spouse usually inherits half of the intestate property. Children who were legally adopted receive an intestate share, but foster children or stepchildren who were never legally adopted do not automatically receive a share. Creating a will or trust could help you ensure that your loved ones are included in your estate according to your preferences.
As you can see, dying without a will can create immense problems for your family and other loved ones and result in your assets being handled in a manner you would not approve of. This is why every adult needs to have an estate plan in place, regardless of the value of your assets.
Working with an experienced firm like Spagnolo & Hoeksema, LLC, will help you formulate a comprehensive will and protect your interests. Our attorneys can conduct a thorough examination of all your assets and develop a plan that precisely suits your needs and goals. Call us or contact us online to receive a free consultation so we can further discuss your estate planning options.
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