How to Settle an Estate With or Without a Will

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Estates that have a valid will are classified and treated differently than estates without a valid will. If an estate has a will, you must file a petition with the probate court to have the will admitted to probate. A will generally names an executor to administer the estate. If the decedent’s estate has no valid will, you must file a petition with the probate court to administer the estate, and other folks who feel they’re just as qualified may file a petition as well. If more than one person applies to be administrator, the court decides who gets the privilege.

Whether the decedent left a will also determines whether the decedent’s wishes or the state laws determine who receives the assets.

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Dying testate: What happens when a decedent leaves a will?

A decedent who dies with a valid will is said to have died testate, and is referred to as a testator. The will of the testator undergoes probate, according to the laws of the decedent’s domicile at the time of death. Probate allows the court to rule on the will’s validity and supervise the administration of the estate.

Domicile is the decedent’s legal home. The following factors determine a decedent’s domicile:

  • Where the decedent lived for more than half of the calendar year
  • Where the decedent registered to vote
  • Where the decedent registered a vehicle
  • The address that the decedent used on income tax returns

Individual state law determines the validity of a will. For instance, in most or all states a will writer must be at least 18 years old and of sound mind (known as having testamentary capacity). Usually the will must be in writing and signed by the decedent or another at the direction and in the presence of the decedent.

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Benefits of Setting Up a Trust
Status of Your Will: Testate or Intestate?
Probing Probate: What You Should Know