The purpose of a will is to allow an individual to determine the distribution of his assets after his death. If your father dies intestate (without having made a will), the disposition of his property will depend upon whether any other estate planning instruments are in existence. For instance, your father may have created a trust or transfer on death deeds. If he did not set up any of these situations, state laws regarding intestacy will control the distribution of his assets.
Although your father may have made a will, he may have created a trust. A trust is a different sort of estate planning tool that involves a third-party trustee. Upon your father's death, the trustee would distribute his assets to beneficiaries according to the terms of the trust. A trust is often considered an excellent alternative to a will because a trust does not need to be presented to a probate court, keeping the document private and preventing your father's estate from incurring probate fees.
Transfer on Death Deed
Your father may also have used a transfer on death deed instead of a will, or in conjunction with a trust. A transfer on death deed conveys your interest in real property to a named beneficiary upon your death. This mechanism is much more straightforward and cheaper than creating a will. However, certain states do not permit the use of transfer on death deeds. You should consult with an attorney to determine if this type of deed is valid in the state your father lived.
Right of Survivorship
Another method to transfer property without a will is joint tenancy with right of survivorship. If, for example, most of your father's assets consisted of a home, he could decide to hold the home as a joint tenant with his intended heir. In such a case, upon the death of your father, the property automatically passes to the other joint tenant. This option similarly keeps the transfer of property private and reduces any costs.
If your father died intestate without having created any trusts or joint tenancies, the law of the state where he lived will control the disposition of his property. State intestacy laws provide for the inheritance of property in a specific order, such as first to children, then to a spouse and finally to parents.
- "Wills, Trusts and Estates Examples & Explanations"; Gerry W. Beyer; 2007
- "Kiplinger's Estate Planning: The Complete Guide to Wills, Trusts and Maximizing Your Legacy"; John Ventura; 2008
Andrew Mayfair has written professionally since 2009 when his article on patent law was published in the "Loyola of Los Angeles Entertainment Law Review." Mayfair earned his Bachelor of Science in biochemistry from the University of California, Davis and his Juris Doctor from the University of the Pacific, McGeorge School of Law.