Elder Law Report
Elder Law Report
Why Have a Will? The Hidden Pitfalls of Intestate Succession
Navigating probate without a will can be a legal nightmare. What if you discovered that your surviving spouse might not inherit everything? Join us on the Elder Law Report with McIntyre Elder Law as attorneys Samantha Gordon and Jane Dearwester uncover the harsh realities of intestate succession. You'll learn how this complex legal framework can impact your family, especially if you have minor children, multiple properties, or assets requiring streamlined distribution. Jane explains the legislative intricacies in Raleigh that can lead to unexpected complications for surviving spouses and family members.
During this episode, we break down the misconceptions around intestate succession and the extensive legal hurdles it creates. Samantha and Jane discuss the emotional and financial toll on families who must endure this lengthy, expensive process while already dealing with the loss of a loved one. We highlight why it's crucial to have a well-thought-out estate plan and avoid probate whenever possible. Gain invaluable insights to ensure your loved ones are protected and your assets are distributed according to your wishes. Don't miss this essential guide to safeguarding your family's future.
Hello, welcome to the Elder Law Report. With McIntyre Elder Law. I'm attorney Samantha Gordon, joined by attorney Jane Deerwester. Hey, jane, good morning. I'm coming from our Charlotte office and Jane is coming from our Hendersonville office.
Samantha Gordon:So today we're going to talk about what happens when you probate without a will. So, first and foremost, what is probate? So, first and foremost, what is probate? Probate the way that I like to explain it is an ugly court proceeding where you have to ask the court to distribute your assets pursuant to whether you have a will or you do not have a will, and you have to pay the court money to submit documents and to allow you to make those distributions. It can be a very costly process, a very time-consuming process. In some of the bigger counties in North Carolina it can take up to a year to two years to do probate.
Samantha Gordon:So if you can avoid it, it would probably be best, specifically if you have any type of minor beneficiaries, if you have multiple properties, if you have just assets that you want to have streamlined if something were to happen to you. There's different ways that you can avoid probate, but today we're going to talk about an instance where, if you have not set up an estate plan and you do have to go through probate and you do not have a will, which would be the guide to tell the court where your assets go. So, jane, let's talk a little bit about intestate secession. So intestate means that someone did not have a will. So if you just want to maybe touch on what intestate to session is and why we don't want that to happen, yes, this is, I would say.
Jane Dearwester:the legislators in Raleigh have figured out what to do with your stuff if you don't make a plan right. So to a certain extent it's what you think it would be. There are special designations made for your surviving spouse, for your children, for next of kin. But what a lot of people I think don't understand and I have a client who's kind of suffering through this right now, especially in the case of married couples. People assume that when they die, even if they don't have a will, their spouse gets everything. That is absolutely not true and I can't believe, honestly, how many people actually can believe it, because I understand why people think that. But it's a very scary misunderstanding because if you don't make a plan again, then that the surviving spouse, the person who's left behind, they not only have to deal with this long, lengthy, expensive court process, but they don't just get the house automatically, they don't just get all your stuff automatically, and it can really lead to some just serious issues. They're already going through grief of losing their spouse and having to deal with this is a lot just in general.
Jane Dearwester:And so, in testate succession, if we would print out the statutes I think they go about 12 pages to describe if you die with a spouse but no children, or you die with a spouse and children and your parents are living. A lot of people don't know your parents stand to inherit from you under certain circumstances. So what you've got to do when you're going through probate with intestate succession is figure out which sub part you fit into. So are you married? Did you have children? Did any of those children pre-decease you? It's kind of a formula to go through and then to also find out what assets have to go through that probate estate.
Samantha Gordon:Yeah, and it's really. It's a parenthetical line, is what it's called. So all the way down to your third cousin can inherit. If you don't have parents, siblings, nieces, nephews, like it's just you know, someone that you don't even know possibly can inherit from your estate and in addition to that, if you have any minor children, then what's going to happen is a guardianship would have to be opened up for those minor children to actually inherit any assets.
Samantha Gordon:There's different ways. You know that you can handle in a state like that. But if you have to go through probate and you don't have a will in addition to that, the person that's going to step up to be your administrator If there's anyone else that also has the authority to be your administrator, they have to renounce so that this one person can then become the administrator. And if there's nobody that is going to step up to be the administrator, it's possible that a public administrator, someone appointed by that county, could be the administrator of your state.
Samantha Gordon:There's many different ways that you don't have control over what happens because you do not have a guide to the courts to tell them what you actually want it to happen. So just making sure that you have an estate plan in place that says, hey, this is what I want. Something happens to my spouse, I want everything to go to my surviving spouse. If something happens to both of us, then we want everything to go to our kids, or we only have dogs, we want everything to go to our dogs. You know, like, whatever it is, you've got to have a plan in place that actually says what you want, to ensure that that's actually what happens. It also makes the process so much easier for your loved ones as well.
Jane Dearwester:Yeah, easier, cheaper, and you know there's a scenario where sometimes we have people come in or ask questions when we're out in the community doing educational seminars about what if I don't really have next of kin, if I'm like the last in my family, if everybody has passed away. Well, theoretically, in that scenario, if you truly are the last and no next of kin can be identified, your stuff literally goes to the state of North Carolina it's called Nisjeet. It goes to the state and, as Sam was explaining, if you don't designate someone and no one in your family comes forward or wants to serve as the administrator of your estate, stranger is going to be in charge of going through all your bank accounts, doing an estate sale of all your forks and knives and things that you've collected over your life. So you know all of this. To say what happens when you don't have a will.
Jane Dearwester:I hope this is pinging all of you who are listening to this to say, oh, I don't want this. This is very avoidable. You do not want this process. It's slow, it's expensive. As Sam was saying, you don't have any control, your family doesn't have control over what to do next and, not to mention, it allows any creditors you have to get at your assets as well going through the probate estate.
Samantha Gordon:Yep, and if you don't have any assets that are going through your estate and maybe you just have a piece of real property and there's creditors out there and they file claims against your estate, they could bring in that real property to sell your home to pay those claims. So you really want to have a strategic and methodical plan in place that really says what's going to happen and maybe we want to avoid probate so that this doesn't even have to be something that your loved ones have to deal with. We want to avoid probate so that this doesn't even have to be something that your loved ones have to deal with. We would love for you know whoever's listening to meet with you and to have a free consultation so that we can really talk about estate planning, how to avoid probate and how to protect your assets. You can visit our website at wwwmcelderlawcom scheduling. Thanks so much, jane. Thank you, bye, cheers.