As Probate Lawyers, we all too often have families come in after a loved-one has died and tell us: “We couldn’t find a Will–now what?” For instance, we recently had a family come to probate the estate of a man in his 50s. He was unmarried and had no children. This man had not talked to his biological father in 30 years. However, because he didn’t have a Will, his biological father and biological mother were each entitled to half of his estate. Why? Because without a Will, state law designates where your property goes after you die.
This link provides a great chart that a Judge in Austin created explaining the default provisions of the “intestacy” law (i.e. the law that designates who gets property if there is no Will). As you can see on the last page, if an unmarried person dies without a Will, and is survived by his mother and father, both the mother and father each take 50% of the estate.
So why would this happen in a case where the father had not talked to his son in over 30 years? The answer is that the state legislature set down these default rules so that they would be fair in the vast majority of situations. But there is no way for the default provisions to be fair in every situation. And that is why the legislature allows each individual to draft a Will if they do not want the default provisions to apply.
So the key take-away from this is to have a Will. Make sure that you sit down with a knowledgeable Estate Planning/Probate Attorney who can draft it to meet your individual needs (form Wills just don’t cut it in most situations since every person is unique).
But what if your loved one died without a Will, like the man in our example above? You can still probate his estate, but it will be a little more difficult. The court will look to the state “intestacy” statute to determine who should get the property. The court will have a hearing to determine which of the heirs listed in the statute is still living, which heirs are entitled under the law to receive property, etc. In order to do this properly, the judge will appoint an independent third party attorney to investigate the family history to make sure no heir is left out. This attorney is called an “Attorney ad Litem.” Naturally, this attorney must be paid, so this fact alone makes the probate of the estate much more expensive than if the person who died had a Will.
Once the Attorney ad Litem makes their report to the court, the judge will rule on who the living heirs are, and who should receive the property of the person who died. This process is longer and more complicated than if there had been a good Will, but it certainly can be done.
So if you had a loved one died without a Will, don’t worry–you can still proceed forward. But be aware that just like the Mother in our example, you may not get everything from the estate that you had been expecting.
If you have questions about this issue or any other Estate Planning/Probate Law issue, please give our Probate Lawyers a call at 214-236-2712.