Daniel P. Randolph, Esq.Thinking about and planning for death is not easy. Consequently, some people do not plan ahead for the death of themselves or a loved one. When a person dies (the decedent), Probate Court comes into the picture. A person who passes away with a Will dies testate. A person who passes away without a Will dies intestate. If the decedent died testate, his or her property passes through Probate Court according to the named beneficiaries in the Will. If the decedent died intestate, the laws of his or her state of residency will govern how and to whom the property passes through Probate Court.

Some property passes outside of Probate Court, either through a beneficiary designation or rights of survivorship. If a beneficiary is named on a life insurance policy or retirement account, at death, the funds from these contracts are payable directly to the named beneficiary without going through Probate Court. However, if no beneficiary is named (or the beneficiary predeceases the decedent), Probate Court may be required for the funds that pass under the Will or state law, whatever the case may be. Property owned jointly with rights of survivorship pass directly to the survivor without going through Probate Court.

Absent a Will, beneficiary designation, or rights of survivorship, families are at the mercy of the state laws of the decedent’s residency. The heirs chosen by the state may not be the same heirs whom the decedent would have chosen. This could be particularly problematic in the situation of blended families.

Further, if families have minor children, a Will is a mechanism to name a guardian if a parent passes away before the child reaches age eighteen. While Probate Court is not required to follow the guardian selection in the Will, it typically gives great weight to the decedent’s wishes. If there is no Will, Probate Court has to rely on others for guidance in the selection of the guardian. The outcome may not even be close to the decedent’s preference.

A Will is essential if a person owns property or has minor children. Things do not just “take care of themselves.” Creating a Will correctly is a small task compared to the problems that could arise if someone does not create one.