It is estimated that, annually, over 50% of adults in the United States die without a Will. Fortunately, state laws are in place to handle such occurrences. Our February 14, 2013, post discussed settling an estate when a Will exists. This post addresses how estates are settled when there is no Will.
There are two big differences between leaving a Will or dying “intestate ” (without a Will).
1. If you have a Will, you can specify who your Executor will be (i.e., the person who settles your estate after you’re gone). In other words, you pick the person(s) who you prefer to handle your estate. However, if you die intestate, then the state Surrogate’s Court will appoint an Administrator (who performs the same duties as an Executor).
So, for example, let’s say your father died without a Will, your mother is still alive, and you have a sister. Since there is no Will, someone must go to Surrogate’s Court and file an application so that he/she can be appointed the estate’s Administrator. NJ state law specifies the “order of priority” regarding who may apply for the Administrator position. At the top of the list are the closest surviving next of kin. In this case, that would be your mother. However, if your mother doesn’t want this responsibility, next in line are you and your sister. If no family member wants this position (that includes grandchildren, cousins, etc.), then a creditor or other interested party may apply.
As noted above, the Administrator will perfom the same duties that would be performed by the designated Executor in a Will. These duties include identification, collection, and valuation of the decedent’s assets, management of all assets, and payment of all debts and expenses, including all federal and state taxes. Once these responsibilities are fulfilled, then all remaining assets are distributed to beneficiaries. It can take the Administrator quite a while to wind up the decedant’s affairs, and the services of professionals such as attorneys and accountants may be needed.
2. If you have a Will, you have much more control over how your estate will be distributed – who will receive what, and how much! If you die without a Will, state laws provide detailed guidelines regarding how much and to whom your estate will be distributed.
In our example, state guidelines would specify what perecentage of your father’s estate went to your mother, you, your sister, your father’s surviving parent(s), your father’s surviving siblings, and the list goes on. Bottom line, because your father died intestate, there was no record of how he wanted his estate handled and he, therefore, had no control over how his estate was distributed.
Getting Legal Help
If you have assets, and you want to specify how those assets should be distributed when you’re gone, then it’s important to have a Will. Experienced Estate Planning Attorney, Elga Goodman, can work with you to prepare a Will that best reflects your wishes. Contact us today at 973-841-5111.
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