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How Does Dying Without a Will Affect Probate?

Intestacy refers to the condition of an estate when its owner dies without a valid will in place. There are a number of reasons why an estate can fall into intestacy, and it’s not always due to the negligence of the deceased to create a will. As an example, someone could contest the validity of the will by asserting it was signed under duress or is otherwise fraudulent. If someone making such an argument is successful, a judge may order the will invalid and the estate becomes intestate.

No matter why or how an estate falls into intestacy, there are very important probate considerations to take heed of right now. Under ideal circumstances, a will guides how someone’s estate is divided and who will be granted guardianship over minor children. Without such a document to rely on, the probate processes will follow the state’s intestacy laws to decide who will get what portions of an estate, and it can be up to the judge’s discretion as to who will take care of your kids.

Let’s take a look at the effect of intestacy on your property and guardianship of your children, each, on a more detailed level.

Intestacy, Probate & Your Property

The brass tacks of probate are about settling someone’s estate in a courtroom setting, ideally guided by a will. This is the normal course of action whether or not someone died with or without a will, but the latter case can make the process more involved, costly, and provide less agreeable outcomes to a deceased’s descendants.

When no will is in place, the full swing of the state’s intestacy laws comes into play and provides the roadmap for settling an estate. This can be problematic for a multitude of reasons, not least of which is that the distribution of estate assets follows a strict order than can cut out a lot of people the deceased cared about.

Intestacy distribution in Oklahoma goes as follows:

  • When there are a spouse and children, half of the estate is awarded to the spouse and the other half passes on in equal shares to the children.
  • If there is no spouse but only children, the estate is equally divided among the children.
  • If there are living grandchildren but the deceased’s children are not alive, the estate is split among the grandchildren according to what their parents would have inherited.
  • If there are no spouse or children, the deceased’s estate passes on to their parents.
  • If there are no descendants or parents, the estate passes on to the deceased’s siblings and their children
  • When no descendants, parents, or siblings are alive, the deceased’s grandparents inherit the estate

For many people, a glaring problem with this order of succession is that it prioritizes certain family members over others, removing the possibility of a friend or charitable organization benefiting from inheritance. With a valid will in place, the stated-mandated order of succession will not have to apply to your estate or that of a loved one.

Guardianship & Intestacy

Establishing guardianship over minor children is a critically important part of settling someone’s estate. Guardianship alone is a good argument for why everyone with children should have at least a will in place even if their wealth is relatively unsubstantial.

When people die intestate with minor children, however, there is no standard law that determines who will care for the deceased’s minor children. Instead, it can be up to the probate judge to assess the fitness of willing relatives of the deceased to care for their children.

This, however, can work against what the deceased would have wished for in life in two ways:

  • Children may end up in the care of a relative the deceased would not have wanted to be granted guardianship
  • Children may end up in foster care if the judge deems willing relatives unfit or unable to assume guardianship

As with the material things of an intestate estate, the law provides limited if not any opportunities for friends of the deceased to become involved probate matters like guardianship. And just as with any probate matter, the best way to ensure your wishes are carried out as faithfully as possible is to make them known by keeping a valid will.

Do You Need a Probate Lawyer?

Whether a loved one’s wishes are carefully laid out in a will or existed as a tangled web of intestacy, The Bundren Law Firm, P.C. can help you navigate the complicated legal processes involved with probate. Our attorney has more than a decade of experience helping people like you reach the best possible conclusions in probate proceedings.

A lot of questions can come up during probate of an intestate estate, especially as it pertains to material property and guardianship. With our assistance, you may be able to successfully advocate for your interests in a loved one’s affairs when they passed away without a valid will in place.

When you need legal assistance that cares about the outcome, contact The Bundren Law Firm, P.C. by reaching out online or calling (918) 992-3300 for help.

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