UNDERSTANDING YOUR LEGAL RIGHTS
WILL VERSUS NO WILL
DYING WITH A WILL-TESTATE
The probate court of the county in which the decedent resided is the court that hears matters relating to the disposition of the decedent’s property. If the decedent died with a properly executed will, he or she died testate. In that case, the terms of the will govern how the decedent’s property will be distributed and who will be the guardian of any surviving children.
DYING WITHOUT A WILL-INTESTATE
If the decedent died without a will, he or she is considered under the law to have died intestate. In cases of intestacy, the distribution of the decedent’s property and the provision for surviving minor children is usually governed by the law of the state in which the decedent resided. If the law of intestacy provides for the distribution of the decedent’s property or care of minor children in a manner that is different than what the intestate decedent expressed during their lifetime, then obviously the decedent’s wishes will not be followed, unless those wishes happen to be the same as the applicable state law governing intestate distribution and guardianship of minors.
It is recommended that a person has a will for several reasons, including being able to direct how his or her property will be distributed and to whom any surviving minor children will be entrusted.
PROPERTY PASSING OUTSIDE THE WILL OR THE LAWS OF INTESTACY
It is also important to understand that some property passes outside the terms of a will and the laws of intestacy. For example, in some instances, assets such as IRA’s and other retirement accounts have beneficiary designations that govern how the IRA will be distributed on the death of its owner. This means that the distribution of an IRA may not be governed by the terms of the IRA owner’s will or the laws of intestacy. Instead, the IRA will be distributed according to its beneficiary designation.
Additionally, property titled jointly with the right of survivorship is distributed to the surviving owner. This is another example of property passing outside the will or outside the laws of intestacy.
CONSULT AN ATTORNEY TO EFFECTUATE YOUR ESTATE WISHES
Oftentimes, what property is distributed under the terms of a will and what property passes outside the terms of the will can be difficult to understand, and consulting a lawyer can assist you in planning how you want your property distributed, who you want to care for your minor children, and what your situation requires legally to effectuate those wishes.
Please feel free to contact us at Rumsey & Ramsey at 770-394-9400 to discuss your needs in this area.