In the first part of this series, Death without a Will Part I: Identifying Heirs, we provided an overview of what occurs when a person dies without a will—when a “decedent” dies “intestate,”—and we analyzed the heirship proceeding that must be completed following the death of such a person.
In Part II, we briefly explain the potential procedures the Court may use the administer the estate, the drawbacks and benefits of these procedures, and the heirs responsibilities under these procedures.
Application for Estate Administration
Once the Court determines heirship, it must determine how the estate will be administered. If the decedent had drafted a will, the Executor identified in the will would be responsible for this. Assuming the executor appropriately probated the will, the executor would then transfer property as dictated by the will. For example, if Uncle Joe’s will left his nephew 10 acres of land, the Executor would need to file the appropriate paperwork in the property records to transfer the 10 acres of land. However, since there is no will, the Court must determine who will administer the estate.
To have an Administrator appointed, the decedent’s heirs will apply for an estate administration, and the court must determine whether the administration will be independent or dependent.
In an independent administration, the Court appointed Administrator works independently of the Court to distribute estate assets and settle the Decedent’s affairs—much like an executor under a will. However, if the Court determines a dependent administration is necessary, then the Administrator will need to work hand-in-hand, step-by-step with the Court in this process. Every action taken must be approved by the Court.
A dependent administration is extremely time consuming and expensive because the Dependent Administrator, through an attorney, must file documents with the Court each time the Administrator seeks to administer estate property.
Whether the Court requires an independent or dependent administration depends largely on two issues: whether the heirs all agree to the appointment of an independent Administrator and whether there are any minor heirs.
If the surviving heirs are all adults, and if they can agree to an independent administration, Courts generally prefer to allow an independent administration. Unfortunately, its common for relatives to have tumultuous relationships and the death of a loved one does not always soften hearts. If the surviving heirs cannot get along well enough to agree to the appointment of an independent Administrator, then the Court will require a dependent administration.
If there are any minor heirs, many Court automatically require a dependent administration. Presumably, this is due to the risk of adult heirs taking advantage of the minor(s) and dividing the estate unfairly. If there are minor heirs, some Court will only allow an independent administration is very narrow circumstances. For example, some Texas Court will allow an independent administration if the Decedent is survived his a spouse and minor children born of the marriage (no step children, no children from a prior marriage, etc.), and the estate is fairly uncomplicated (not extremely valuable). In other words, if there is a very low chance that the minor children could lose an inheritance they would otherwise have received if they were adults, the Court may consider an independent administration.
Regardless of which type of administration the Court requires, the administration process is very involved. The administrator must give various forms of notice to creditors, utilize assets to pay debts, gather and list the estate’s assets, classify those assets by property type, complete an “Inventory and Appraisement” to submit to the Court detailing the estate’s assets.
When you die without a will, you place a burden on your relatives/friends that is exponentially heavier than if you had left a simple will. The heirship and administration proceedings described in this two-part series have been condensed and simplified. Depending on the circumstances, an administration may take months, or even years, to complete. Between court costs, attorneys fees, missed work, and other expenses, the procedures required to settle an estate without a will eclipse the time and expense required to probate a will.
When there is no will, loved ones may spend months or years jumping through legal hoops and paying thousands of dollars to lawyers Instead of devoting their time to the grieving process. Even worse, the lack of a will often results in family disputes over how to divide the estate. If the surviving heirs hire their own attorneys as a result of the dispute, the expense can multiple exponentially, often outpacing the actual value of the estate.
The bottom line is that most of these issues can—and should—be avoided by simply executing a will.