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“Testate” Probate Versus “Intestate” Probate
Asset distribution is a central task of both “testate” probate and “intestate” probate. A testate probate is available when the decedent died having executed a valid last will and testament. Conversely, an “intestate” probate is the default when the decedent died without a valid last will and testament.
In most states, probate is required when someone dies leaving an asset or assets not titled to a trust or for which there is no surviving joint owner or no designated beneficiary. Consider such asset or assets “orphaned,” with no living owner. Consequently, probate is required in the state where the decedent was last a resident to find a new owner for any orphaned assets left behind.
How does “testate” probate work?
First, a petition is filed with the probate court, which reviews the last will and testament to ensure that it is the “last will” and testament and that it satisfies the particulars required under state law to be valid. Once accepted by the court, the court issues “Letters of Administration” to the personal representative designated under the last will. This document empowers the personal representative to begin paying just debts, taxes and expenses of the estate and, ultimately, to distribute and manage assets according to the terms of the last will.
Once filed with the probate court, the last will and testament and any related documents become part of the public record. Anyone can request and view these documents, including creditors, salespeople and even thieves. This is why vulnerable surviving spouses are contacted by third parties promoting their professional (and less than professional) services. Scammers also use court documents to identify potential victims.
Probate also requires the executor to notify people who are named in the last will, as well as lawful heirs not named in the last will. Each of these parties is also provided a copy of the last will. Consequently, state probate statutes provide for a period of time for disgruntled heirs to challenge the last will.
What happens if a person does not have a will, but they do have an estate?
Without a last will, “orphaned” assets still require probate before distribution. With no last will appointing a personal representative chosen by the decedent, the probate court may appoint a curator to fulfill that function. This person may never have known the decedent or the family of the decedent. There is no requirement for the probate court to appoint a family member to serve as the personal representative and especially if there is conflict among the family members.
The estate curator follows the state laws of intestate succession.
If the court appoints a curator of an “intestate” estate he or she has the same responsibilities as the personal representative in a “testate” estate. However, since the decedent did not create a last will to provide instructions regarding the estate distribution, the intestate estate passes according to state law. In most states, this one-size-fits-all distribution formula is based on the degree of kinship to the decedent. If there is a surviving spouse and no children, then the spouse inherits everything. If there is a surviving spouse and children, then the spouse and children share the inheritance.
Failing to have a last will leaves the family open to many challenges.
Without a last will, the family has no control over how assets are distributed. A curator will need to be paid for their services. If the estate is small, this will decrease any potential inheritance. A last will is also used to name guardians for minor children. Therefore, if there is no last will and no surviving spouse, minor children may be assigned a foster family until long-term placement can be made.
What if you want to avoid probate over your assets completely? Consider creating a fully-funded revocable living trust with a trustee of your own choosing to manage the trust assets privately and confidentially for your beneficiaries. An experienced estate planning attorney can help you select the right estate plan for your unique circumstances now and keep it up to date, since changes inevitably occur.
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