After a Death and No Will

[ribber]

Has anyone dealt with a deceased family member's assets who did not have a will? Google tells me the probate court gets involved and appoints an executer? Is it a long painful process?

My dad has been in poor health for several years and has recently had a stroke along with many other ailments. I feel like the end is nearing and I think he knows that too. I have mentioned a will to him a few times before but he never showed much interest. And I don't want to be pushy about it for obvious reasons.

He has a CD, a checking and savings account, a house, and no debt so it should be pretty painless I would think?

Before anyone thinks it, I am not asking because I'm seeing dollar signs, we're talking about a very modest amount of here! And my only sibling's name is on his house, so the house will just transfer to her, I would assume.
I do handle his affairs and have Power of Attorney for him and am curious how everything works when once he's gone. Things like, will I still have to pay his city utilities, power bill, etc. and will I have access to his checking account to do so?

 

[Milkman]

Sorry for your upcoming loss. Consult an attorney who specializes in estates before he passes away if possible. If not , afterwards.

 

[Offroadtek]

Get a will. It will remove all questions. On the house for instance. My Aunt's husband died last month without a will. Both of their names were on the house. Because he did not have a will and he had 1 child all his possessions are to be divided between my aunt and his son. So the son now owns 25% of their house and half of all his stuff or the value there of.

He is a nice guy so it's not proving too troublesome, but the legal hassle is extensive.

I am sorry for the situation you are in.

 

[Lilly001]

I recently went through a similar issue when my mother died.
Disclaimer, this was in Fl so ymmv.
Mom had a will but we found probate was not needed.
Her major asset , an investment account, was left to me only.
I then divided it among my siblings. Watch for tax liability if you do this.
Her checking accounts were in her name and another sibling so we were able to distribute that among ourselves.
She had no house, that’s where the investment account came from.
Florida also has a means to file through the circuit court to avoid probate if certain $ asset limits are met. That only require a 250.00 filing fee.
Im sure Ga Has similar laws. An attorney to set up a will can advise you better.
And ours was agreeable to all heirs. If someone contest something it can get complicated.

 

[GunnSmokeer]

I'm a lawyer and although I don't make wills, trusts, and estate planning a practice area of my business, I have done wills for friends and family, and I have had potential clients contact me and tell me about trouble they've had probating the will when their loved one has passed away (not one of my clients, not involving a wheel that I drew up).

My comments:

1-- Yes, your loved one should have a will even if the terms of his will would be the same as what the default provisions are in Georgia law for people who die intestate (without a will.)

2-- The Will should have a self-proving affidavit (although in this particular case it seems like there wouldn't be a long passage of time in between the creation of the will and your loved ones passing, but generally speaking you do not want to have a situation where the probate court has to try to track down and get signatures on forms from people who witnessed your Will years ago when those witnesses may have moved and changed phone numbers, and the women got married and changed their names!)

3-- Get the will done while your father is still of relatively sound mind and does not have dementia, Alzheimer's or any other issue with his mental capacity.
( although by Georgia kaw, a person does not have to have very strong mental faculties to make a valid will. In fact the mental capacity required to make a will is less than what is required to enter a legally binding contract!)

 

[Oldstick]

I think GunnSmoker probably nailed the answer. Especially if he does not already have a surviving spouse or relatives where he has already set everything up as jointly owned by them (i.e. jointly owned with rights as the survivors). Money, bank accounts and real estate etc..

Went through a very similar situation with my Father in Law after his wife had already passed. Very doable, but was a pain and took many months to get completed. Family had to consult a lawyer, agree on who the executor would be, then pay lawyer to file the proper paperwork with the court to get the executor approved. Then the executor could proceed with all the claims with the banks, and the local property tax office, etc. So my wife's family paid an extra thousand or so for the legal filings out of the modest amount of the estate. Better to pay the $300 or so now to go ahead a will drawn up.

 

[LTZ25]

I would advise to get a lawyer to come in and do a simple will , your dad will be glad you did , after my wife passed I got my son to set up a meeting with lawyer and got a new will and am happy to do it .

 

[hipster dufus]

Dumb question, if i die wife gets everything. Am i wrong in thinking i should only get a will if she dies, or vice versa, she gets a will when i die? Got 2 kids who would split my vast holdings if we both die.

 

[Milkman]

Dumb question, if i die wife gets everything. Am i wrong in thinking i should only get a will if she dies, or vice versa, she gets a will when i die? Got 2 kids who would split my vast holdings if we both die.

Don’t assume anything. Remember it’s a Government agency that will make the determination unless there is a will on file.
Put your wishes in a will. It’s easy and not very costly.

 

[DannyW]

Dumb question, if i die wife gets everything. Am i wrong in thinking i should only get a will if she dies, or vice versa, she gets a will when i die? Got 2 kids who would split my vast holdings if we both die.

No lawyer here, but I think if you die without a will, your wife will still get your assets...minus a healthy chunk of probate court administration fees.

With a will, even a simple one, she would get 100% of your assets. (Assuming you named her as the executor.)

 

[Oldstick]

Dumb question, if i die wife gets everything. Am i wrong in thinking i should only get a will if she dies, or vice versa, she gets a will when i die? Got 2 kids who would split my vast holdings if we both die.

Not a lawyer either, but think you are at least partially correct. I think you might be fully correct if all your accounts and real estate etc are jointly owned with right of survivorship. There is nothing to probate in that case. All passes automatically to the surviving owner. The problem is what happens in the rare case that something happens to both of you at the same time or very close in time. Then the children are stuck without a will from either parent, forcing them to go to probate court to name an executor. So my wife and I both got simple wills almost identical to each other, with the names reversed as to the executor (or "representative" as I think they call it nowadays.)

 

[Jim Baker]

Has anyone dealt with a deceased family member's assets who did not have a will? Google tells me the probate court gets involved and appoints an executer? Is it a long painful process?

My dad has been in poor health for several years and has recently had a stroke along with many other ailments. I feel like the end is nearing and I think he knows that too. I have mentioned a will to him a few times before but he never showed much interest. And I don't want to be pushy about it for obvious reasons.

He has a CD, a checking and savings account, a house, and no debt so it should be pretty painless I would think?

Before anyone thinks it, I am not asking because I'm seeing dollar signs, we're talking about a very modest amount of here! And my only sibling's name is on his house, so the house will just transfer to her, I would assume.
I do handle his affairs and have Power of Attorney for him and am curious how everything works when once he's gone. Things like, will I still have to pay his city utilities, power bill, etc. and will I have access to his checking account to do so?

You will have to apply with the Probate Court to be the Administrator of the estate. You will have to advertise for 4 weeks in the local paper to be named Administrator. After the four weeks the Probate judge will confirm you as administrator after a two week period beyond the advertisement ends. This is if no one contest you being named. Then You have to advertise as the Administrator in the local paper to all debtors and creditors to the estate. Once that is satisfied then division of assets will be made following the law governing intestate succession.

If you can't get your Dad to get a will, in my opinion for what it is worth get an attorney to help you with establishing an estate. You are going to want all the t's crossed and I's dotted.

I am not an attorney, just speaking from experience.

 

[hipster dufus]

I speak as someone whos vast holdings amount to a house, an ira and household goods. Wife on all accts, deed, beneficiary. Kids might argue over who gets pics,. Now when there is just one of us left i see a need for a will.

 

[ClemsonRangers]

if you have power of attorney go ahead and get your name on all his accounts

sounds like the house is taken care of

in SC, we didnt have to go through probate

 

[NE GA Pappy]

Dumb question, if i die wife gets everything. Am i wrong in thinking i should only get a will if she dies, or vice versa, she gets a will when i die? Got 2 kids who would split my vast holdings if we both die.

i believe the way it works in Georgia is that the spouse will get 50% and each of the children will split 50%.

 

[Oldstick]

I speak as someone whos vast holdings amount to a house, an ira and household goods. Wife on all accts, deed, beneficiary. Kids might argue over who gets pics,. Now when there is just one of us left i see a need for a will.

Exactly the same as me. I was thinking exactly what you are thinking for years and years. But another thing a legally signed and witnessed will does is specify exactly how you want things distributed. For example, divided equally to all children that are survivors. Or say if one child happens to have passed before both of you, do you want their share to pass down to their children instead? Things like that are covered in a will.

 

[ClemsonRangers]

i would read the deed to the house to see if your sibling has right of survivorship

 

[Oldstick]

Another thing one can and probably should do, somebody correct me if I am wrong, but I believe you can go to the bank and designate beneficiaries for all accounts. For example 1. 100% to spouse if living, or 2. equally dividing to surviving children, etc. down the line as you choose. I assume if it's a joint account both owners have to sign the papers.

I know most IRAs and retirement pensions can do this and insurance policies you are required to designate, of course. This will remove some of the probate red tape as well. For the average Joe like me, this would leave only the house subject to probate after all the joint owners have passed. And a will that covered the house would speed that up considerably.

 

[JustUs4All]

Avoid probate, posting newspaper ads, waiting periods, problematic relatives and distribute the deceased’s assets immediately: Revocable Living Trust.

That works to take care of the problems you mention but you might want to consult a tax expert as to how that sort of transfer might negatively effect the basis in the assets distributed in that way. Passing through an estate allows for a stepped up basis at least for now.

 

[JustUs4All]

Avoid probate, posting newspaper ads, waiting periods, problematic relatives and distribute the deceased’s assets immediately: Revocable Living Trust.

That works to take care of the problems you mention but you might want to consult a tax expert as to how that sort of transfer might negatively effect the basis in the assets distributed in that way. Passing through an estate should allow for a stepped up basis at least for now.