When a person dies without having made a Last Will and Testament, and they have property titled in their name alone, whether it is a boat, house, bank account or a motorcycle, there is a good likelihood that they have made life more difficult and more expensive for their surviving spouse or children.
By not leaving a Will, the deceased has not had the opportunity to name an Executor; therefore, the survivors must apply to the Court for the right to probate their estate. The process of transferring assets of a decedent to those people who rightfully should receive the assets is what is referred to as probate. Without a Will, the survivors must apply to the Court for the right to be named Administrator. Then, they are required to post a bond and obtain permission of the Court to transfer the assets. Without a Will appointing an Executor and waiving bond, the survivors of the decedent will be required to post a bond, which is generally twice the amount of the personal property value. This value is usually somewhere between $50.00 and $500.00 per year for the minimum bond requirement.
Also, without a Will, real estate title vests in a decedent’s loved ones. If there are minor children, they each will have rights in the real estate that is left behind. However, in order to sell that property, the Administrator must apply to Probate Court for permission to sell, with notice to all interested parties. If the Administrator sells any of the real estate, then the money received from the sale increases the amount of personal property and the bond must be increased. This can be a stressful and frustrating situation but can easily be avoided by simply preparing a Will naming an Executor, granting certain powers, and directing that no bond is required.
Without a Will, there is sometimes a lengthy period where nobody is in charge or has authority over a loved one’s assets who has passed. During this time, assets can often disappear, and the disappearance can be the cause of family strife and costly litigation.
In many cases, attorneys can help prepare the simplest will to avoid the problems stated above or can help craft an estate plan designed to control assets from beyond the grave, or in larger estates, design a plan to take advantage of any tax saving opportunities.
The above article was written by John W. Hoppers, Esq. of Strip Hoppers Leithart McGrath & Terlecky