If you die having made a will then your heirs will enter the probate process. In probate, the will is submitted to the Surrogate’s Court for approval, and then the Executor — the person appointed to see to your affairs after your passing — is issued “letters testamentary” which empower that person to access and distribute your assets. There is some more to the process than that, but it is fundamentally straightforward — provided you have a properly written and executed will.
In contrast, if you do not have a will, you die “intestate,” and your estate enters the process of “estate administration.” Estate administration is much more difficult at every turn and ripe with opportunity for conflict among your heirs. Estate administration will also be more onerous financially. The Court will be involved in your affairs in a much more substantial way. Unless your estate is very small, your Administrator will be involved with the Surrogate’s Court from beginning to end. He or she will need to provide accountings to the Court. Your Administrator will need to secure a surety bond for the entire value of your estate. The complexities of administration are quite likely to demand the assistance of an attorney, whereas the probate process is far simpler. Even if your Executor needs the assistance of an attorney, the cost in legal fees will most likely be much less in probate.
Even more importantly, if you die intestate, you then have no control over how your estate is distributed. Your heirs-at-law will inherit from you by the statutory scheme — whether you like it or not, and whether it makes sense within the context of your life and your family.
The issues presented by intestacy thrust an unnecessary burden upon your heirs at a difficult time. Making a will is the “ounce of prevention” needed to avoid the “pound of cure” that estate administration easily becomes. By making a will, you are taking responsibility for your affairs upon yourself — and alleviating much of the burden from the loved ones you leave behind.
In part 3, I will discuss why it would behoove you to have an attorney draft your will — rather than writing your own or printing one off of the internet.
Be sure to like my Facebook page and/or subscribe to my mailing list so that you don’t miss any important information, and I hope you will join us at the Sparta Public Library, this Thursday, October 14, at 1:00 for an in-depth discussion of wills.