Probate is a process in which a deceased’s will get executed for settling his/her estate. Probating of an estate is also possible when the deceased has left no will. In such cases, the estate might go to the wrong person. The wrong person in a sense with whom the deceased doesn’t intend to share his/her property. Intestate estates is the name given to those estates which are without a will. The probate court administers the process in both cases.
Probate with a will or without a will gets executed according to the state laws. Because any deviations from the state laws will lead to errors in the process, this errors can turn into legal trouble in no time. Therefore, following the laws imposed by the state is mandatory while executing the probating process.
Estates with a will or intestate estates are not so different from each other, to some extent they are similar. But there are some dissimilarities between them which a person can witness during the probating process.
Let’s discuss the dissimilarities of both the estates at different stages:-
Appointment of Executor For Probate
When there is a will for executing the estate, selection of executor is not that difficult. Because the executor’s name is already mentioned in the will. The deceased have selected the executor while drafting the will. In such cases, the power of settling the estate of the deceased goes to the person intended by the deceased. Therefore, the person selected as the executor knows how to manage and settle the estate of the deceased.
In the case of intestate estates, there is no executor appointed beforehand as there is no will. Here, the court appoints a blood relative of the deceased as the executor. The court first makes a priority list of the relatives in which the surviving spouse comes first. Children of the deceased are the next choice, and next to them are the other relatives. The court appoints executor from this list and grants him/her all the power required for settling the estate.
Rules in Transferring Through Probate
Probate of an estate with a will is simple and straightforward as it specifies the names of the heir or beneficiaries. The deceased has mentioned the name of the person who he/she wants as an heir or beneficiary while drafting the will. In such cases, the life savings of the deceased goes to the person intended by the deceased. The distribution of assets gets done among the persons mentioned as heirs or beneficiaries in the will.
In case there is no will, then the estate as discussed earlier will become an intestate estate. In such cases, the distribution of assets gets done according to the laws of the state, which is why the assets may go to a person who is not preferred by the deceased. According to the state laws, the larger share of the estate goes to surviving spouse. The remaining percentage goes to the children of the deceased. In case the deceased had no children, then all the shares will go to the spouse. If the deceased had no spouse or no children, then the estate will get distributed among the distant relatives.
Persons who have done something wrong against the deceased are not eligible to get the assets. Wrong in the sense some crime against the deceased or abandoning the deceased in his/her last stages of life.
Laws of State
The state has different laws for probate of estates with a will and intestate estates. The laws regarding the intestate estates are termed as intestate succession laws. The court follows these laws when there is case probate of an estate without a will.
Different state has various laws which are not similar. Hence, it becomes difficult for the executor if the deceased own property in different states. This difficulty is faced in both the situations, with a will or without a will. Recently, it is being planned to come up with one probate penal code which will get followed by all the states.
Probate of an estate is similar either with a will or without a will except for some differences. But it is always better to leave a will behind before dying so that your life savings will go to the right person. Because the court might transfer it to the wrong person in the absence of a will, the person with whom the deceased doesn’t intend to share any of his/her assets