What to do when a parent dies without a will?
When someone passes away without a will, it is said they died intestate. This means that the person’s estate will be distributed according to the laws of intestate succession. These laws vary slightly from state to state but generally they give priority to spouses, followed by immediate family members such as children and living parents. If there are no children, the spouse generally has the right to receive the entire estate. If a person leaves behind a surviving spouse and children, then the children may or may not be entitled to receive an inheritance from the probate estate.
State laws will also dictate who will act as person representative or executor of the estate, with the priority again given to spouse and close family members. The local probate court will need to be notified of the person’s passing in order to begin probate proceedings, preferably within ten days. The court will oversee the management of the estate to ensure that the assets are distributed according to the laws of intestate succession and that all heirs are satisfied with the distribution. The probate process can be intimidating and time consuming, with almost all estates being subject to some level of probate.
It is important to make sure that no valid will exists. People often store their estate planning documents in out-of-the-way places such as filing cabinets, safes, safe deposit boxes, or even leave them at an attorney’s office or at the courthouse. If you are not sure if your parent had a will or not, talk to any relatives and look for clues such as business cards from attorneys, accountants, or correspondence from legal offices that might indicate they might have signed a will. If a will is discovered after the probate process has begun, the court needs to be notified immediately.
What is a Will?
A last will and testament is a legal document that specifies a person’s wishes regarding who should take their assets after their passing. In most states, wills need to be notarized or signed in the presence of witnesses in order to be valid. Many states also recognize holographic wills, or documents that are hand-written by the testator. Unlike the rules of intestate succession which will have fixed guidelines regarding who receives the estate, a last will and testament can leave property to virtually anyone, regardless of family connection.
A will should clearly identify the testator as well as their family members, and cover all of the person’s major assets. It should also include the person who should act as Personal Representative; this is the person who will be responsible for managing the estate. If there are any minor children, a will can also include who should raise them after a person passes away. The last will and testament eventually becomes a public document once the probate process begins.
People often believe that an old will might no longer be valid, but the passage of time alone does not invalidate a last will and testament. A will could have been written and signed twenty years ago but it is still valid until the document is destroyed or a new one prepared to replace it. That is why it is important to update a will after an important family situation or change of heart. You can read more about common mistakes when drafting a last will and testament and how to avoid them.
What Is a Child Entitled to When a Parent Dies Without a Will?
Colorado laws have provisions in place to protect a surviving spouse, and they take precedent over children and other beneficiaries of the estate. If a person is married at the time of their death and dies without a will, what the spouse is entitled to depends on whether there are living parents or descendants. Generally, if a person dies without a will but has a surviving spouse then the spouse will be entitled to the entire estate, regardless of whether the couple has any surviving children.
Let’s explore some different scenarios as they produce somewhat different results:
If a parent dies and is survived by children and a surviving spouse, and the surviving spouse has no children from other relationships, the surviving spouse generally inherits everything.
In Colorado, if a parent dies and is survived by children and a surviving spouse, and the surviving spouse has children from other relationships, the surviving spouse inherits $225,000 of the estate and one-half of anything remaining in the estate. The children would receive one-half of any amount over $225,000 remaining in the estate. If a parent dies with adult children who are not the children of the surviving spouse, the spouse inherits $150,000 and one-half of anything remaining in the estate. The children would receive one-half of any amount over $150,000 remaining in the estate.
In all of these cases the surviving spouse receives their inheritance first, meaning that depending on the size of the estate, the children’s share could be significantly reduced or eliminated altogether.
What Happens If You Are a Single Parent?
If a person is not legally married at the time of their death, then the living descendants are entitled to receive all of the probate estate per stirpes. That is, if there are two children then each will each receive one half, if there are three children then each will get one-third each and so on. Per stirpes means that a beneficiary’s share passes to their descendants if the beneficiary dies before receiving the inheritance. That is, if a child dies before the parent, their share of the estate will automatically and evenly go to their surviving child or children.
Do All States Have the Same Rules?
Every state, and the District of Columbia, has its own laws of intestacy. However, all states follow the same general order of priority regarding who is entitled to the estate. The surviving spouse is first in line, children and other descendants next, then parents, nieces and nephews, and finally aunts and uncles. If there are no living family members to inherit, then any property in the estate is considered unclaimed and is ultimately transferred to the government by a process called escheatment.
If you are not familiar with what would apply to your case, you can consult your state’s laws regarding decedent’s estate and intestate succession or talk to a trusts and estates attorney to obtain professional guidance. The easiest way to avoid any uncertainty regarding a future succession is to have an estate plan in place that will dictate what your wishes are regarding your property.
The General Process
In practice, the legal process is very similar regardless of whether a person passed away with a will or without one. In either case, the estate will need to go through probate. The administration of the estate generally lasts around a year, as the court needs to ensure that any required notifications are made, creditors are paid, beneficiaries receive their shares, etc. If there was no will then the laws of intestate succession apply. If there was a valid will, then the estate will be managed according to the terms of the document.
It is important to know that a will is only one of several methods of distributing property at death. Other important documents include trusts, pay-on-death forms for financial accounts, and beneficiary deeds for real estate. These instruments can transfer ownership of assets without the need of a will and pass outside the scope of intestacy laws and the probate court. In practice, these documents can sometimes contradict each other, making the process more complicated. For example, the same bank account may be mentioned in the will but also contain a pay-on-death designation. Generally, the beneficiary designations will take precedent over the language of the will.
While having a valid last will and testament is a good way to start the process, a comprehensive estate plan should encompass much more. At a minimum, an estate plan should include a will, a trust, as well as incapacity documents.
If you have questions regarding the passing of a family member, or if you would like to inquire about an estate plan for yourself or a loved one, contact Blake Harris Law. Initial consultations are offered free of charge and give you the opportunity to speak directly with an experienced attorney regarding your probate or estate planning needs.