State laws of intestate succession that typically date back to the 1950s determine the relations who receive our assets if we die with a will. Experts point out that this can create unfortunate disconnects, especially given the varied, changing and blended family structures of our era. This makes it especially important to spell out our intentions while we have the opportunity to do so.
Law Professors remind us that only about 44% of Americans say they have a will detailing how their assets are to be distributed upon death. For the majority of us, these “decisions” are being left to intestate-succession laws which were created in the mid-20th century. As Michael Waters explains in The Atlantic:
In the decades since, the average family has undergone a radical shift, today comprising people who have children from prior relationships, unmarried partners, or nonbiological children (for instance, a grandmother or close family friend raising a kid). Today, nontraditional families that don’t have wills, in particular, can be thrust into a cruel legal limbo when a loved one dies.
Take, for instance, a mother with a biological child, who gets a divorce and then marries a new spouse. If that mother dies without a will, states will pass on most of her assets—the house, the family heirlooms, everything—to the new spouse, while her biological kid will receive a smaller share, if anything. If, say, that spouse later remarries and dies, also without a will, the mother’s biological child could again be cut out of inheriting their mother’s remaining assets, because intestacy laws would prioritize the spouse’s new family.
In addition to all the other important decisions made—and legally documented—when a will is created, is the designation of a family member, friend, or professional to carry out our intentions and administer our affairs when we die. Generally, this representative is referred to as an executor. An executor has a fiduciary responsibility to act in the best interest of the estate and beneficiaries.That’s why executor bonds have long served as a protection for everyone involved. Sometimes these bonds are specifically requested during the probate process. Essentially, an executor bond guarantees the faithful performance of the executor in accordance with the law. Colonial Surety Company makes it quick and easy to get an executor bond: get a quote online, fill in the information and enter a payment method. The bond can then be e-filed or printed from anywhere—even before leaving probate court.
Updating The Possibilities
Effort is underway in many states to update laws and make it easier and faster to leave a will behind. For example, several states have paved the path for digital wills, and “about half of states allow homemade, handwritten documents to count as wills—which should benefit working- and middle-class people in particular, because these handwritten documents don’t require a lawyer or witnesses to create.” New provisions in some states “allow documents that don’t follow all the will-making rules to still be validated if strong evidence indicates that these documents were intended as wills. These provisions have led courts to count everything from a note scrawled on a tractor to a typed message in Evernote as a legal will.”
Good To Know
It is a common myth that if we have a will, we can by-pass probate. That is not true: in fact, generally, the filing of a will, along with the death certificate, initiates the probate process. When there is not a will, what is different is that state laws of intestacy determine the distribution of assets.
By working with an estate planning lawyer, we can place assets in various types of trusts. Assets placed in a trust do by-pass the public probate process, making it faster and more private for our loved ones to access them. Nonetheless, for most families, some form of will, such as a “pour over will” ultimately helps to ensure that our affairs are as neatly ordered as possible. It’s also helpful to know that some assets, like life insurance policies and retirement accounts, are not subject to the probate process. That’s why it is extra important to ensure the beneficiaries named on these assets are accurate and current.
Though the probate process is rumored to be notoriously long and cumbersome, the truth is that many states now offer expedited processes, based on the level of assets involved. LegalZoom offers this snapshot of the probate process: “The basic role of the probate court judge is to assure that the deceased person’s creditors are paid, and that any remaining assets are distributed to the proper beneficiaries…The court appoints someone to take control of the deceased person’s assets, ensure that all debts are properly paid, and distribute the remaining property to the proper beneficiaries.”
Probate courts often require the procurement of a probate bond. Sometimes specifically referred to as a personal representative bond, executor bond, or administrator bond, these bonds protect the interests of the estate and its beneficiaries in accordance with applicable state law. Learn more about the role of bonds in protecting the interests of the estate and its beneficiaries right here. Although bond names and requirements vary from state to state, when a probate court anywhere in the country requires a bond, national expert, Colonial Surety is here to help. We are a direct, digital provider of a full portfolio of bonds, and make it quick and easy to quote, purchase and e-file required bonds, from anywhere, in minutes—even before leaving court. Obtain Court Bonds Here Now.
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Founded in 1930, Colonial Surety Company is a direct writer of surety bonds and insurance products. Colonial is rated “A Excellent” by A.M. Best Company, U.S. Treasury listed, and licensed for business everywhere in the USA.