What if There is No Last Will & Testament?

What if there is no Will?Death Without a Will

Unfortunately, it is all too common for a mother or father to die without having made a final Will.  It can create some difficulties for the heirs. It can also bring about some serious family conflicts.

In Lake County, Indiana, the probate system is fairly typical of those systems across the country. (Probate is that legal system consisting of rules and laws which govern the handling of the estate of those who die, with or without a Last Will & Testament.

The essence of any probate systems is to provide a set of rules for distributing the assets within the estate of those who die.
While every state’s laws differ in some respects, at the core of all the probate system is a set of rules that tell the citizens who has to file a petition to open an estate, how to file, where to file, and what documents must be given to the court.

Normally, an estate is opened by the filing of a Petition with the Probate Court in the County in which the decedent lived. For example, if the decedent lived in Lake County, Indiana, then the Petitioner would file with the Lake Circuit Court, or one of the Superior Courts in Lake County. That Petition asks that the Court appoint a particular individual to the role of Personal Representative, or in some jurisdictions, the Executor (male) or Executrix (female). Notice of the Petition is given to the heirs as well as to known creditors. A filing fee is required.

If No Will, Who Can Serve as Personal Representative?

If there is a Last Will & Testament, that document will name the Personal Representative that the decedent wanted to serve. However, if there is no Will, then anyone can Petition to become the Personal Representative. Sometimes, there are competing Petitions where two or more persons wish to be the Personal Representative. The Court then has to hold a hearing after which it will determine who is to serve. The primary choice will be a close relative of the decedent. A son or daughter would be preferred over an aunt or uncle, or even a brother or sister. But, there are various factors that come into play so it is not always the closest relative who will be selected by the Court.

What are the assets?Once the Personal Representative is chosen, that individual will have the responsibility of collecting all of the assets of the decedent and making an inventory. Also, the Personal Representative will be need to go over all of the papers of the decedent to find bills, to do final taxes, locate bank accounts, insurance records, and determine exactly what the decedent owned at death. He or she will file a list of that inventory with the Court.

Also, the Personal Representative must make every reasonable effort to locate the heirs of the estate. Indiana, like every other state, has a statute that specifies the order of inheritance. For example, if a parent dies and there is no spouse, then if he or she had children, then those children are the sole heirs. If there are no children, then the Court will look at the statute and began a process of selecting those next in line to inherit.

One thing that absolutely must be done where someone dies without a Last Will & Testament is to open an estate, assuming there are assets. However, it may be possible to avoid opening an estate if the total assets are at the statutory minimum so as to qualify it as a “small estate,” after payment of funeral costs and other qualified bills. In such case, an affidavit may be sufficient. But, there are some circumstances where, even though the estate qualifies as a “small estate” under the statute, an estate should be opened. Sometimes, to protect the person handling the estate, he or she may want an estate opened. It can solve some problems that may arise and gives some closure that otherwise may be lacking. For example, if  the decedent had real estate, then it is usually a good idea to open an estate.

Bottom line: If you have a loved one who died without leaving a Last Will & Testament, definitely call a lawyer and get some advice as to how best to proceed.


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