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What happens to the property of a person with and without a will?


The law dealing with estates governs the passing of the property of people who have passed away as well as people who during their life either voluntarily or involuntarily have conveyed their property to a third person for purposes of managing that property.

The law dealing with decedents, people who have passed away, is sometimes referred to as pro­bate. The term probate literally means "to prove." What is proved in this instance is a will. A will is a written statement signed by a person expressly indicating his or her wishes regarding the dispo­sition of his or her assets at death. A will never becomes on operative document until that person passes away. Prior to the person's death, the will may be amended at any time assuming that the person is competent. That amendment is called a codicil.

Some states allow handwritten or holographic wills. A holo­graphic will must be completely in the handwriting of the person signing the will. That is, you cannot hove someone else hand write a will for you. If there are any words on the will other than your own, the will may be considered ineffective. The problem with a handwritten will is that it is not self-proving or self-authenticating. The executor would need to bring witnesses to the courthouse to
prove that it is authentic.

The validity of a will may be challenged for a number of rea­sons. The most common challenges are fraud, undue influence, or duress.

The objective of a will is to provide for on orderly transfer of assets from one generation to the next. If a person dies without a will, then the transfer of his or her assets will be governed by the law intestacy. The law of intestacy is that body of low estab­lished in the state code that dictates who will be the recipient or recipients of the decedent's property if the decedent dies without a will. It always is preferable to hove a will since that gives you control over how your property will pass. If you do not have a will, then the low of intestacy rules. That law varies dramatically from state to state, but typically it establishes an order of priority in which most of the assets go to the surviving spouse. If there is no surviving spouse, the assets normally go to the surviving children, and if there me no surviving children, then perhaps to parents or siblings of the decedent.

If a person dies with a will, that will should be probated. Probating the will simply means presenting the will to the clerk of the local court that has jurisdiction over wills and estates and proving that it is authentic. Most wills are self-authenticating. That means they are witnessed by the number of persons required by state low, notarized, and contain the necessary language required by state low in order to make them self-proving or self­-authenticating. If the will is self-proving or self-authenticating, then all that needs to be done is for the executor to present the will to the clerk of the court. The clerk will then accept it upon payment of the proper filing fee.

Normally, in a will, there is a designation of an executor. The role of the executor is to gather all the assets of the decedent, report to the court what those assets are, and then supervise the orderly distribution of those assets in accordance with the will. If a person dies without a will, then the individual that is appointed for this purpose normally is referred to as an administrator. An adminis­trator and serves the same general function as on executor. The process of gathering the assets, reporting to the court, and then distributing the assets is supervised by the local court where the will was probated. Generally there is a court officer who is responsible for that supervision. The purpose of court supervision is to ensure that the wishes of the decedent are carried out

The administration of estates can sometimes take many years depending upon the size and complexity of the estate and the terms of the will, including the administration of any trusts cre­ated by the will. As part of the administration of an estate, any potential creditors should be given notice of the fact that the estate is being administered. Those creditors then have a desig­nated period of time to make claims against the estate. If those claims are not made within the time allowed, they are deemed to be denied. At that point, the assets of the estate can be distributed after payment of all lawful debts of the estate.

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