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What if there is no will?

There are few, if any, adult Americans who don't know what a Last Will and Testament is. After your loved one's death, your attorney will have the will admitted into probate court. The will specifies how your deceased loved one wants his or her estate distributed after death. After a few weeks of legal procedures, the terms of the will have been accomplished and after a final court appearance, everyone goes home and has lunch.

The problem is that sometimes it doesn't work this way. We tend to think of ourselves as immortal, and death is the last thing on our minds. When we do allow ourselves to picture our own death, we think of a cool, clean hospital room where we will peacefully surrender our lives when death comes for us. However, many thousands of people die unexpectedly from accidents of all kinds, natural disasters, combat in wartime, terrorism, acts of random violence, and sudden medical conditions like strokes and heart attacks. It is sobering to think that any day could be our last. This is why it is so essential to have a Last Will and Testament.

But what if there is no will?

What happens if your loved one dies, leaving no will that specifies how he or she wants the estate distributed after death? In 1993, the Uniform Probate Code was established to make probate procedures in all states the same; probate law in California is the same as in Pennsylvania. The Code specifies the law of intestate succession. This legal jargon simply means that your loved one died "intestate," or without a Last Will and Testament, and that the laws of "succession," meaning the legal heirs of the deceased, will be determined by a probate court and the estate will be distributed to those heirs.

A primary difference between how an estate is distributed with and without a will is that in a legally prepared will, the testator, or person making the will, must name an executor to serve as the individual (or organization, such as a bank) who distributes the estate assets according to the terms of the will. When no will exists, the probate court judge will name an administrator of the estate; it is this person's responsibility to determine who the legal heirs of the estate are, determine the debts of the estate and order payment of those debts, and carry out the distribution of the estate to the legal heirs. Some courts refer to administrators as personal representatives of the estate.

What about bond? What is it, and who posts it?
  • In a Last Will and Testament, the testator names an executor, and directs (in most cases) that the executor serve without bond. This is a trusted individual.
  • If there is no will, the probate court judge who appoints the estate's administrator may direct the administrator to serve with a bond of several thousand dollars, depending upon the size of the estate. The judge can also waive bond of the administrator.

Bonds in probate law are similar to posting bond in criminal cases. By posting bond in a probate case, the administrator guarantees his or her honesty in determining the value of the deceased's estate. If, for example, an estate administrator fails to declare certain assets of the deceased and keeps those assets for himself, when this fraud is discovered the bond will be forfeited. All bonds – either those of executors or administrators – are discharged upon the faithful and honest accounting of the deceased's estate.

A Last Will and Testament specifically names the testator's heirs, and can also make other bequests such as to a charity or a church. When someone dies intestate, the appointed administrator has the duty to determine the heirs of the deceased. The line of succession usually follows this pattern:

  1. Surviving spouse
  2. Children, including legally adopted children
  3. Siblings
  4. Surviving parents
  5. Grandchildren
Some exceptions apply to these rules of succession

There are, of course, exceptions to these rules of succession. For example, if the surviving spouse is incapacitated by age or illness, the court could appoint a legal guardian or conservator for him or her so that the inherited funds are accounted for and paid out for the spouse's upkeep. The same is true of minor children; a guardian ad litem is a temporary guardian of the child's person and possessions. When the child comes of age, the inherited funds are then dispersed to him to her.

The laws of intestate succession can be complicated. This article explains general terminology and procedures when someone dies without a will; it is not intended to serve as legal advice. If you have lost a loved one who died without leaving a will, please consult an attorney right away to determine your rights and responsibilities regarding your loved one's estate.

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Further sources of information

You may find our other articles in the Death, the law and you section helpful too.

Visit our Amazon store to find books on wills and probate.

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