Parent passed away with no will. What happens now?

Question

A member reached out to me asking for advice.

His parent passed away suddenly, with no will. What is the first thing he should do?

I have no experience with this, any attorneys, CPAs, probate experts who can give advice?

Joshua B. · Answer

Death intestate means you get the will assigned to you by the state you live in. Most likely gonna need a probate attorney if there are any assets. Assuming a simple family structure, high probability that the decedent's children will split the assets of the estate.

Jacob D Cockerell · Answer

I'm glad this question came up. I hope it serves as motivation for others to set up a will or trust. So that their family doesn't have unnecessary hassle, on top of grief of loss.

Mike S. · Answer

A Will is not enough. You will still have to go through probate. The Will will only indicate to the probate judge what were the intend of the deceased. He may follow it or not. The probate process will take months to complete anyway and cost a lot of money. Also if the asset contains some real estate property in multiple states, a probate should be started in each different state. More cost and delay...

What everyone need is a living trust that is properly funded (so many people create the trust but don't title their asset to the trust). The living trust will bypass probate and the asset will be transferred to the trustee without delay or fee. You will still need a Pour Over Will to take care of everything that you forgot to transfer to the trust. Also even if the asset left over out of the trust is minimal, it is often advised to have a probate anyway to extinguish any possibility of unknown debtor coming back later. But as the asset going through probate will be minimum, the fee, delay and annoyance will be also minimum.

Last check if in your state it is wise to title your principal residence to the living trust. In some state you may loose some homestead or medicaid benefit. In the states that have that option, it may be better to deed the property with an enhanced life estate (Lady Bird deed) so the property will be automatically transferred only at time of death to the living trust.

As a side note, if you are concerned about estate taxes, there are some options available to mitigate them with the use of some other kind of trusts that could be crafted for your specific situation. When you are creating your will and living trust, it may be wise to explore those at the same time with a savvy attorney and CPA.

Theresa Harris · Answer

I agree.  It cost me under $400 to do my will and about an hour of my time.

Mindy Jensen · Answer

Thank you @Joshua Birk

Joshua B. · Answer

It’s not that courts literally assign a will. I mean that in a practical sense - i.e. each state has its own laws regarding what will happen to your property when you die should you fail to make that decision. So, you’d better make a decision or they’ll make it for you.

Clint Votruba · Answer

@Mike S. is so right here.

Particularly for old(er) persons/couples whose end of life in nearer then most.

Most younger people do not opt for a Revocable Trust because of the cost.

A Last Will in my area can be $ 400-$500 for non-complex estate planning situations, which do not include complex wills and trusts.

The cost for a Revocable Trust can begin at $ 1,500 and go as high as $ 3,000 to $ 5,000, depending on the complexity of the trust itself.

However, when the Grantor/Trustor dies, the Successor Trustee takes over and exercises the same power over the assets as the original Trustee, all without the involvement or approval of a probate court.

Moreover, the experience of settling your estate will be so much easier for the loved ones who will inherit your property.

Chris Gerrard · Answer

Depending on the state and the size of the estate, your friend may want to research "Small Estate Affidavits"

Mark Pedroza · Answer

If the decedent died without a will that means that the decedent died intestate @Mindy Jensen

It will be awhile before the state escheat's their claim.

No way that the state will assign a will to the family as the family should have had an estate plan in place.

A family member will have to decide who will represent the estate as the Personal Representative and petition the probate court for Letters of Administration since there was no will..

Legal aid from the local county courthouse can assist with filing court mandated paperwork or recommend a probate attorney.

If the PR and the beneficiaries get along and there is no friction within the family probate should take 8-12 months.

Thomas J. Clifford · Answer

Having gone through this not too long ago, the above advice is solid. Make sure that you find a probate attorney that responds to your questions and explains the processes thoroughly. The one my brothers and I used was a nightmare, and she closed her practice 8 months into the process! When it came to our father's house, we were in probate for a year and a half because the mortgage company could not find the paperwork to move forward with the probate process. We had the title in our name for that long, even after we said we had no intention of assuming the loan.Hope this helps!T.

Parent passed away with no will. What happens now?

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