When someone does pass away without a will, that’s called intestate. Intestate is from the Latin root word meaning no testimony, and when someone passes away without a will, the law has specific procedures which must be followed.
Some say that not making the will means you've made no choice on how your assets are to be distributed after you pass, but that's false. If you’ve not made a will, you’ve chosen to allow the government to make those choices for you and they will distribute those assets pursuant to law.
Finding Next of Kin
After the death certificate is received, next of kin must make a filing with the probate court and the appropriate next of kin depends on who exists.
- The surviving spouse is the most appropriate next of kin to make the filing.
- If there is no surviving spouse then that duty falls to the children.
- If there is no surviving spouse and no children, then the duty falls to the parents of the deceased.
- If there are no parents alive at the time, then it falls to the brothers and sisters of the deceased.
- If there are none of those alive, then it falls to the grandparents.
- If no grandparents are alive then it would be next of kin, defined by the law as any lineal descendants of the grandparents.
- If there are no lineal descendants alive as we’ve just described, the property then goes to any stepchildren.
If there are no stepchildren in existence, then the property escheats. You never want the property to escheat because that means it goes government.
Filing in Probate Court
After the family decides who's the most appropriate next of kin to make the filing, the next step is either to hire a probate attorney or acquire the forms from the local probate court and have the administrator make the filings themselves.
Surety Bond for Probate Court
When there is no will, the probate court will require that a bond be filed. A bond is an insurance policy what will assure that the administrator will properly distribute the assets.
Intestate Court FilingThe initial intestate court filing will include:
- a death certificate,
- request by the administrator to be appointed,
- identification of all next of kin,
- proof of the posting of bond, and
- any other documents required by the local probate court.
After filing, an intestate case will move through the court just as if there was a will, however, the court may have additional requirements such as making sure there’s permission to sell certain assets.
Find an Experienced Probate Attorney
This process can seem complicated, but with competent counsel it can smooth things out considerably. Here at Port Legal we’re here to guard, guide, and defend your interests through all probate cases.
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