When a person dies without a will, this is known as dying "intestate." If this occurs, his or her property is put through a probate process in which the property is given to the heirs determined by the law. After a person dies, the probate court appoints a personal representative, also known as an administrator to take all claims against the estate, pay off debt, and then distribute the property that remains to heirs based on state probate laws.
When a person dies testate, or with a will, the estate is divided in accordance to the deceased person's wishes specified in the will. An intestate estate is distributed to beneficiaries based on the law set forth by the state in which the deceased owned property. If, for example, a person dies but he or she owned property in more than one state, then there will be several estate divisions based on more than one rule. In addition an intestate probate process is generally more expensive than probating an estate with a will. Usually, the cost of the court procedure is taken out of the value of the property the heirs inherit.
While the state laws pertaining to property distribution vary from state to state, the differences are usually subtle, but can deliver a vastly different result to a deceased person's heirs. Most state laws divide property among the surviving spouse and the children of the deceased. If there is no spouse, then only the children would get the estate. The value of the estate is usually divided among the children equally.
To give an idea about what state provisions may look like, the following are distribution procedures for the probate process without a will in the state of California:
If married, the spouse receives 100 percent of the community property, but one third of the separate property left. The children receive a portion of this distribution as well.
If the deceased was unmarried (widows and widowers included) the property is distributed to relatives with the following priorities:
If there are any, all to children, grandchildren, great-grandchildren.
All to parents, divided among them equally.
All to the issue of parents, including brothers and sisters, and then nieces and nephews.
All grandparents, spread among them equally. Also, the issue of grandparents, including aunts, uncles, and then cousins.
All to the issue of predeceased spouse. This includes step-children.
All to the next of kin.
All to the parents of a predeceased spouse, including mother and father-in-law.
Also, the issue of them, including brother and sister-in-laws.
All to the state.
In some instances, if a person with a will dies, a will may go missing. A lost will can bring up many interesting legal issues, depending on the state in which the deceased resided.
The reason why a will may go missing is because the deceased had intentionally revoked it without others knowing. If this has been done, an earlier version of the will is then used as the guideline in the probate proceeding. If there is no earlier will, the state in which the property was owned will divide assets based on state law.
Also, there may be a lost will if it is determined that the lost will was destroyed in an explosion or fire, usually in a bank vault. In this case, the original copy of the lost will does not have to be used. A photocopy of the will can be used in probate court instead if approved by a judge.
In many circumstances, a lost will may usually mean that the deceased may have created a new version of the will.