Dying without the benefit of having a valid will in place can create a lot of unnecessary problems. The sad part is that this laundry list of issues could be avoided simply by planing ahead. Out of all of these concerns, the biggest question that comes to mind is: who is in charge when you die without a will?
Dying without a will, called intestate, means that the state, and not your loved ones, will determine who is in charge. If the person was married, the state will typically go with the spouse first. While this might be fine most of the time, there are instances where it can create many problems. What if they were separated, pending a divorce? There could be a lot of animosity between family members that would disrupt the division of property.
But having a spouse does not automatically mean that they will receive delegation rights. If the estate is of significant value, the spouse may not be entitled to divide it. Each state has their own guidelines as to what they consider to be substantial.
The normal process is for the state to assign an executor. There can only be one executor for a will. This person will delegate how all proceeds of the estate will be dispersed. The problem with this is that the executor doesn’t know the family, what their needs are and what the wishes of the deceased were. Therefore, the intentions of the deceased will not be considered.
If the family chooses to try to appoint someone as executor, they should be prepared to be tied up in court for some time. These matters will take months, if not years to be settled. Meanwhile, the estate is just sitting there and the proceeds aren’t doing anyone any good.
In order to assign an executor, you must file the appropriate paperwork in the county where the decedent lived. But there are guidelines as to who can be appointed. Minors, convicted felons, those who are mentally unstable, and former business partners are among those who do not qualify.
When filing to be assigned as executor, you have to provide proof of your relationship with the decedent. They will also be required to provide proof of information on the decedent such as their name, address and information concerning surviving relatives. This eliminates the chance that a stranger will try to move in and take control.
Stephen A. Mendel, Estate Planning Attorney
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