Hepler Broom, LLC

To Have a Will or Not to Have a Will: What are the Implications?

February 16, 2021

What Happens When the Deceased Has a Will?

Generally, a decedent’s Will names an Executor for the estate. The Executor is charged with making sure the decedent’s wishes, as outlined in the Will, are honored.

The first thing the Executor does is file the decedent’s original Will with the court and open the probate matter.[1] After the probate matter is opened, the Executor petitions the court for Letters of Administration, which assists the Executor in gaining access to the decedent’s accounts/affairs. The Executor also provides notice to all beneficiaries and heirs, whether those heirs are named in the Will or not. The Executor is then tasked with paying the remaining bills of the estate and publishing a notice for any creditors to make a claim for money owed to them by the decedent. (Illinois’ and Missouri’s claim periods are six months; Indiana’s varies between three and nine months.) The Executor also applies for an Employer Identification Number (EIN) for the estate and transfers all accounts into the name of the estate.

While the claims period runs, the Executor prepares an inventory of the estate, detailing all property and assets of the estate for the court. (Note that not all assets are the property of the estate. For example, any life insurance policies with a listed beneficiary or any accounts made payable on death to a listed beneficiary will go straight to that beneficiary instead of into the estate.)

Once the claim period has run and there were no contests to the Will, the Executor does a final accounting of the estate, detailing any funds that went in and out of the estate, and distributes the remainder to the beneficiaries as detailed in the Will. The Executor then closes the estate. (Before distributing funds to the beneficiaries, the Executor has the right to request a reasonable fee for his/her time, so long as the Will does not expressly state otherwise. If an Executor intends to request fees, he/she should keep detailed records of each activity performed for the estate and how long was spent on each activity.)

What Happens When the Deceased Does NOT Have a Will?

When a decedent dies without a Will, it’s called dying intestate. However, even when a decedent dies intestate, someone still needs to petition the court to open a probate matter and serve as Administrator of the estate. (Generally, the Administrator is a family member of the decedent. This person must be 18 years or older, a United States resident, have no prior felony conviction, and be under no legal disability.) The Administrator acts much like the Executor, but instead of carrying out the decedent’s wishes as prescribed in the Will, the Administrator is tasked with administering the estate as prescribed by law.

After the probate matter is opened and the Administrator is approved by the court, the Administrator files an affidavit of heirship and sends notice to the heirs. An important step is determining who the heirs are. If a decedent leaves behind only children, then those children are the only heirs and divide the balance of the estate equally. If a decedent leaves behind only a spouse, then the spouse receives the balance of the estate. If the decedent leaves behind a spouse and children, then the spouse receives one-half of the balance of the estate and the children equally divide the remaining one-half. If a decedent dies without a spouse or children, then the decedent’s siblings and parents equally divide the balance of the estate. If a decedent dies without having any living family, then the balance of decedent’s estate goes to the state.

Once the probate matter is opened, the Administrator performs the same tasks as an Executor. The Administrator petitions the court for Letters of Administration, which assists the Administrator in gaining access to the decedent’s accounts/affairs. The Administrator then pays the remaining bills of the estate and publishes a notice for any creditors to make a claim for money owed to them by the decedent. Just like an Executor, the Administrator applies for an EIN for the estate and transfers all accounts into the name of the estate.

Similarly, while the claims period runs, the Administrator prepares an inventory of the estate, detailing all property and assets of the estate for the court. Again, not all assets are property of the estate (e.g., life insurance policies with a listed beneficiary or any accounts made payable on death to a listed beneficiary go straight to that beneficiary instead of into the estate).

Once the claim period has run and there were no contests by any of the heirs, the Administrator does a final accounting of the estate, detailing any funds that went in and out of the estate, and distributes the remainder to the heirs as prescribed by law. The Administrator then closes the estate. (Just like Executors, Administrators have the right to request a reasonable fee for their time before closing the estate. And the same advice applies to Administrators: if they intend to request fees, then Administrators should keep detailed records of each activity performed for an estate and how long was spent performing each activity).

The Takeaway

The steps in the probate process are similar whether you have a Will or not. However, without a Will, you have no say over who inherits your assets and property. And if you die without any living family members?  The balance of your hard-earned assets go to the state.

HeplerBroom’s estate planning attorneys provide a complete range of services so you can be in charge of how your assets are distributed after your death.

[1]If the value of the estate is less than $100,000.00, a small estate affidavit may be filed in lieu of probating the matter. Keep in mind that if any real estate needs to be sold, the matter must still go through probate, regardless of the value of the estate.

COVID-19 Updates

HeplerBroom LLC COVID-19 Response

HeplerBroom has been diligently working on its response and continuity plan to the COVID-19 pandemic in order to keep the health and safety of our employees, their families, and our clients as our top priority.

To help ensure everyone's continued health and well-being, effective March 17, 2020, all attorneys and staff began working remotely. We continue to assess the situation and will return to our physical offices when appropriate.

To ensure this, the firm has identified essential personnel in each office who will make certain that critical firm functions that cannot be done remotely continue to be handled. We have put in place protocol for those essential personnel to make sure they are keeping healthy per the CDC cleaning and sanitizing recommendations. All teams have back-up personnel and procedures that we will follow to make sure all deadlines are met and clients receive the same great service and work product that we have always been proud to provide.

HeplerBroom's IT department has been working hard to make sure all remote employees are set up with equipment and access from home to limit disruption to our clients. Maintaining security and confidentiality has remained, and will continue to remain, at the forefront of all processes and procedures, at all levels throughout the firm.

The firm has created emergency communication measures to communicate any changes to this plan to employees and are communicating on a regular basis with any and all new resources and helpful information during this uncertain time.

During these fluid and unpredictable times, HeplerBroom will continue its commitment to great service and results for our clients, all while keeping safe and healthy.

Wishing you and your families good health.

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