21. Probate law question: What if there is no Will?
If a person dies without a Will (known as dying "intestate"), the probate court appoints a personal representative (known as an "administrator"). see intestacy
The major difference between dying testate and dying intestate is that an intestate estate is distributed according to state law (known as "intestate succession"). A testate estate is distributed according to the instructions left by the decedent in his or her Will.
22. Probate law question: What happens if we cannot find a Will?
If a Will is lost or can’t be found, the specific facts and circumstances and state law will determine what happens. (Likely places to find the will) For instance, if the Will is missing because the decedent intentionally revoked it, an earlier Will or the laws on intestate succession would determine who gets the decedent's estate.
Or, if a Will is missing because it was stored in a bank vault destroyed in a fire, the probate court may accept a photocopy of the Will (or the lawyer's draft or computer file), if there is evidence that the decedent properly signed the original.
23. Probate law question: What if the decedent owned land in more than one state?
The probate laws of the state in which the decedent was a permanent resident determine who will get the decedent's personal property (wherever it was located) and the decedent's real property located within the state. This is why probate is almost always filed in the decedent's home state.
If the decedent owned real property in another state, that state's laws determine how the real property will be distributed.
There will be probate in each state where there is real property, in addition to the home state. Each state has its own method for distributing the decedent's real property.
Even if there is a Will, the Will is first admitted to probate in the home state, then it must be submitted to probate in each state in which the decedent owned real property.
The extra probate procedure is called "ancillary probate." Some states insist upon the appointment of a personal representative who is a local resident to administer the property in that state.
24. Probate law question: How do creditors get paid?
Part of the probate process is to notify creditors of the death. Notice requirements vary. In some cases, you must provide direct notice. In others, you must publish a notice in a newspaper in the city where the decedent lived.
Creditors must file a claim with the court for the amounts due within a fixed period of time. If the executor approves the claim, the bill is paid out of the estate. If the executor rejects the claim, the creditor must sue for payment.
If there is not enough money to pay all debts, state law determines who gets paid first. The personal representative most likely will sell property to pay approved creditor claims.
25. Probate law question: If I am a beneficiary and the estate does not have enough money, do I have to pay creditors out of my own pocket?
Generally, no. The law says you cannot be made responsible for others’ general debts without your consent.
Unless the decedent gave away his or her assets to someone shortly before dying, or otherwise acted in concert with them to defraud the creditors, the beneficiaries should not have to pay the creditors just because they are beneficiaries.
There may be nothing left in the estate for the beneficiaries after paying the creditors. But, the beneficiaries will not owe the creditors money.
Still, if the children or beneficiaries took property or benefits from the decedent or the estate, or assumed liability for care given the decedent, or guaranteed payment, they can be liable for some or all of the decedent's debts separately.
Talk to a lawyer for more information.