Your Loved One Died Without a Will – Now What?

Mon Oct 31, 2022 | Estate Planning |

Even though they are easy to draft and relatively inexpensive, people die without wills more often than you might expect. This can cause a lot of anxiety for surviving family members and even lead to conflict. If your loved one has died without a will and you don’t know what to do, an experienced probate attorney can provide you with the guidance you need. 

What Happens to the Decedent’s Property? 

When someone dies without a will their property will pass to their heirs via intestate succession. A popular misconception is that all of the decedent’s property will be claimed by the state – this is fortunately not the case. Instead, Florida law will determine how the property will be distributed: 

  • If the decedent has children but no spouse, the children will inherit everything
  • If the decedent has a spouse, the spouse will inherit everything
  • If the decedent has no spouse or children, the decedent’s parents will inherit everything
  • If the decedent has no surviving spouse, children, or parents, the decedent’s siblings will inherit everything

If the decedent remarried and has children from the prior marriage, the situation becomes more complicated. And while the property doesn’t go to the state, the heirs have no control over how the assets of the estate are distributed. 

Intestate Succession Does Not Affect All Property

However, some of the decedent’s property may not pass according to Florida’s intestate succession laws. One major exception is jointly owned property that carries a “right of survivorship.” This makes sense because the right of survivorship means that the joint owner gets full ownership once the other owner dies. 

Other examples of property that is unaffected by intestate succession laws include the following: 

  • Any property held in trust
  • Retirement accounts
  • Securities with a transfer-on-death designation
  • Bank accounts with payable-on-death designations
  • Life insurance proceeds

These are similar to jointly-owned assets in that they typically specify what should be done with the property upon the decedent’s death. 

So What Do You Do?

No one is going to come to the decedent’s house and start moving their personal belongings out. What happens next depends largely on the family. In many situations, the family just divides up the property as they see fit and move on with their lives. 

While that may work for silverware and hand towels, problems with this process quickly arise with more valuable assets. For one thing, you may need to demonstrate that you have the legal right in order to take possession of or gain access to certain assets. For example, you may need to prove that you are the rightful heir of the decedent entitled to the funds in a bank account, and most banks will not provide access without legal documentation. 

Meanwhile, there may be creditors who are asserting claims against the estate – claims that can result in foreclosure or repossession. There may be heirs to believe they are entitled to certain assets. You may not even be sure of what assets they had and what creditors there may be. 

If you have found yourself in this situation, the best thing you can do is contact a probate attorney to discuss your options. 

Consider Going to Probate Court

It may seem counterintuitive to file with the probate court if there was no will. In fact, it is a common misconception that you can avoid probate court if the decedent died without a will. However, the probate process formalizes the distribution of assets even though the law will dictate who will be the beneficiaries. Once completed, it gives the beneficiaries full legal rights to whatever assets they inherited that will be respected by all other parties. 

Probate court also provides an opportunity to settle any claims or disputes related to the estate, either from heirs or creditors. These disputes, if raised, will be heard and decided by a judge. Once the probate process is completed, these claims and disputes may be considered fully resolved. 

You Will Need a Personal Representative

In order to proceed with probate, you will need to have a personal representative appointed. The personal representative (referred to as the “executor” in other jurisdictions) is generally responsible for notifying the heirs and creditors, gathering the assets of the estate, paying creditors, and then distributing the assets to the appropriate heirs. 

Serving as the personal representative is a big job that carries a great deal of responsibility. They have a fiduciary obligation to act in the best interests of the creditors and beneficiaries of the estate. Problems can quickly arise when the personal representative doesn’t know what to do. And unfortunately, the task often falls to the closest surviving family member who may or may not be up to the task. This is one of the ways that estates can get bogged down in the probate process – the personal representative is simply overwhelmed. 

However, there are alternatives. You could choose someone else to be a personal representative who is organized and has a knack for handling financial and legal matters. You could also hire a professional to serve as a personal representative such as a lawyer or an accountant. 

The other option is to hire a probate attorney to assist the personal representative. They can help the personal representative file the necessary paperwork and generally discharge their responsibilities.  

Talk to a Probate Lawyer

Before doing anything, you should at least talk to a lawyer. They can review your situation and explain your options. That way, you can make an informed decision as to the best course of action for you and your family. 

Contact Ellis Law Group Today

At Ellis Law Group, we help families in the Boca Raton area resolve whatever estate issues they may be facing – from simple will disputes to sophisticated issues involving the administration of complex trusts. To discuss your case and how we can help, call us today at 561-910-7500 or contact us online to schedule an appointment.