It is estimated that about half of the people in the United States die without having a will in place. It is likely that many people do not understand exactly what happens to their assets once they pass away without having a will in place. While designing a will might not be a pleasant task, it is easier than you might think, and it is important for your loved ones. Not only can it provide them with needed funds to provide for your final arrangements, a well-designed will can prevent family disagreements and ensure that your wishes are carried out.
An individual who passes away with no will in place is called an “intestate,” and someone who has passed away is a “decedent.” Every state has their own intestacy laws to make provisions for how the assets of deceased people are distributed when there are no wills. In most cases, the intestate’s next of kin will receive the bulk of the estate, but the percentages can vary with the surviving spouse getting the most. One example might be the surviving spouse receiving all the property, or the spouse receiving half, with the intestate’s surviving children receiving the other half.
If the intestate is not married and/or has no surviving children, the parents would usually be next in line to receive any assets. When the parents are no longer living, those assets might go to any surviving siblings or their children. When there are angry ex-spouses and estranged family members, matters can get quite complicated.
How Do New Jersey Laws Apply?
When someone dies without a will in New Jersey, the state steps in to first collect any taxes and debts before distributing the assets to heirs. If there is property or real estate owned jointly by a wife and husband, this automatically goes to the surviving spouse. If there is a beneficiary designated in any paperwork, the real estate and property would generally go to those persons who are named.
The remainder of the estate goes to the surviving spouse only if the couple had children born to them while they were together and legally married. If the intestate has a surviving spouse and living children from another relationship, the surviving spouse would be entitled to the first 25 percent of the estate, no less than $50,000 or over $200,000. After that, 50 percent of the estate goes to the surviving spouse, and half of that gets divided up equally amongst the surviving children.
When there are no children but there is a surviving spouse with parents, that spouse receives 25 percent of the estate and 75 percent of the remaining assets. The other 25 percent then goes to the decedent’s parents. When there are surviving adult children, there are other rules in place for grandchildren that can also come into play.
Who Will Be in Charge of Distributing My Assets?
Those percentage distributions can be confusing for the average person, and the courts will name a person to fill the role of executor. In some cases, they will choose the surviving spouse as the first choice, followed by adult children or other family members. This can put relatives in difficult positions of having to decide how everything will be distributed. Estates can be small, medium, or large and can include real estate, investment accounts, life insurance proceeds, retirement savings, living trusts, and personal property.
If the intestate’s estate is more than $50,000, an administrator will be appointed by the county surrogate, and the next kin has to renounce their rights to serve as an administrator. So, if your estate exceeds that amount, a government representative will be in charge of distributing its assets without a will in place.
When there are children involved and no surviving spouse or appropriate caregiver named, the court will need to appoint a guardian. Although courts act in the best interests of children, this situation can be difficult for those involved.
How Does Probate Work?
Courts use the probate process to enforce the legal provisions of a will, and the appointed executor will be responsible for providing an inventory of the intestate’s debts, assets, and information about those named in the will. The whole process can take more than a year to complete, and with complex wills, the process can be time-consuming. The estate will go into probate with or without a will, and the state’s intestacy laws will apply to how assets get distributed.
With probate cases, the named executors usually has 30 days to file the death certificate and documentation with a local probate court. A probate court judge will determine if the will is valid, and there may be a hearing where the beneficiaries can see the will. It is also possible that the will might be contested by a family member or other party. The executor may also have to post bond to serve as an insurance to protect the beneficiaries in case any mistakes with handling the will are made.
Assets will then be identified, and creditor debt will be paid off. The decedent’s final taxes also have to be paid, and then the estate can finally be distributed. Without a will, the surviving spouse usually receives the majority of the estate. As probate proceeds, the assets may be chipped away at to pay off debts, court fees, and other costs. Having an estate plan in place can ensure that the estate gets settled much more quickly and probate can be avoided.
Warren Wills, Trusts, and Estates Lawyers at Herold Law Advise Clients on Creating Wills to Ensure That Their Final Wishes Are Carried Out
Although many people avoid creating a will or an estate plan, doing so can protect your loved ones. If you need assistance creating a will, our Warren wills, trusts, and estates lawyers at Herold Law, P.A. can help. Call us at 908-647-1022 or complete our online form today to schedule an initial consultation. Located in Warren, New Jersey, we serve clients throughout the surrounding areas, including Plainfield.