Estate Planning - What to do when a loved one dies without a will

What is a Will?

A Will is like a letter to the judge. Let’s say it is you were talking about. You wrote a will, then you died. Sorry, but it’s bound to happen at some point. Your will goes to probate. This is the most likely scenario for you. The judge then looks at your will as if you wrote to him or her a letter. “Dear Judge, I have kids, please give them 1/4 of my stuff. Please don’t give me crazy ex-wife/husband anything.”

The Will then becomes a public document and a hearing is held on whether the Will should be followed. Wills are contested and law school textbooks are full of the examples of how and why these documents are fought, contested, and the inheritance spent, all in court battles over whether you meant what you said. Judges are trying to make things fair, so you may find that what you wanted and what a judge thinks is fair may be two different things.

Are you better without a Will?

What Happens When Your Loved One Does Not Have a Will?

We’re going to assume that your loved one was an adult (age 18 or 21, depending on the state) and did not leave a will, he or she is said to have died “intestate.” When someone dies intestate, the courts, not the person’s survivors, will determine how his or her property is to be divided, based on the laws of the state in which the person lived. For example, the law in Utah is that the entire estate goes to the surviving spouse if there any children are from both the decedent and the surviving spouse; otherwise, $75,000.00 plus half of the remaining estate (after paying taxes and debts) goes to the surviving spouse and the other half is divided among children, not from the surviving spouse. If your loved one had children from a previous marriage or was divorced and hasn’t remarried, state laws will determine if and how much property is distributed to these survivors.

Intestate, That Sounds Gross!

Interstate just means that you don’t have a will. It’s not gross. If your loved one died intestate, you will have to request the court appoint an administrator for his or her estate. An administrator generally does everything an executor does. The one major difference is that the administrator is required to represent the estate according to state laws apply when an individual dies without a will. Administrators can request from the court paid for their services to the estate. Those expenses are paid by the estate and reduce how much is available to the beneficiaries. It is possible that a family member may be willing to serve as an administrator without charging a fee.

What’s Better Than Just a Will?

A Trust and estate plan drafted by a competent attorney will do more for your family than just avoid the confusion that happens without a will. With a trust, you avoid probate, avoid the courts, and avoid public records, avoid most of the costly issues that come up when you just leave your estate to chance and the courts.

An extremely valuable reason for creating a Utah Living Trust is to provide your family and heirs with the answers they need. Your Living Trust can help you preserve and increase your estate while you’re alive, and offers protection should you become mentally incapacitated. The Living Trust is the road map you provide for your family and directs the transition of control and ownership of property, the transfer of real property, and administration of your estate and wealth when you may be otherwise unable to make your own decisions.

For more information, see our page on Estate Planning.

Contact a Utah Estate Planning Lawyer

If you are interested in advance planning or are facing an immediate concern, our estate planning attorneys can help provide you a legal solution to protect you, your assets, and your wishes for your family and loved ones. We have offices conveniently located in South Jordan, Utah County, and Bountiful, Utah.

Feel free to call a lawyer in Utah and speak with the estate planning legal team members at Pearson Butler at (800) 265-2314.