What Happens After You Die, Legally?

Disclaimer: This is not legal advice. Some of this applies in parts of the US, but certainly not everywhere. This is a simple outline. Situations can be vastly more complex. Situations can vary wildly between jurisdictions. Further questions should be addressed directly to google. YMMV.

Congratulations, you are dead. What happens to all your earthly belongings now?

Any accounts or property held in your name only including your car(s) and house(s) immediately become property of The Estate of You. Until an Estate Executor/Administrator is empowered by a court to take over your affairs, any remaining living person interacting with your belongings is technically trespassing or committing theft.

Any accounts or property held with a joint owner will automatically pass to the still-living owner(s) without needing to get a court involved. This is an inheritance loophole you should take advantage of.

Hopefully by now you have been medically processed as deceased and declared legally dead by the generation of a death certificate from a funeral home or crematory.

When your death certificate is generated (which can be anywhere from 5 days to a couple months after you actually die), the fabric of your life will begin to unravel. Social Security will be notified, insurance will be notified, mortgages get notified, all within a couple days.

If you prepared for your death by writing a legal will or establishing a trust, congratulations, you know how your assets will be distributed, assuming you die with a positive net worth.

If you did not prepare for your death, you died intestate and what happens next is determined by the laws of the state where you lived. Your heirs (if the state even recognize any) will have no control over the outcome.

If you died without a will, you died intestate and:

• The state uses a flowchart to decide who receives everything you own: spouse, children, parents, siblings, cousins, etc.
  • Note: only blood relatives OR spouse OR adopted children count as legal heirs
    • In most states, step-children DO NOT COUNT as relatives if you die without a will. They have no legal recourse and will get nothing even if no other relatives exist.
      • For example: if parents die in the wrong order, step-children get nothing. If your birth father is married to your step-mother, neither have wills, and your birth father dies first, then your step-mother dies second, then you inherit nothing. When your father died, his assets passed to your step-mother, and now you have no legal right to any assets since you are not a legal heir of your step-mother (assuming you were not adopted).
    • if you want step-children to inherit any of your estate and you DO NOT have a will, you must legally adopt them (which removes their legal ability to be a direct heir of their birth parent(s) you are adopting them away from—courts don’t allow people to have “two sets of parents”). It’s cheaper to get an online will and have neighbors sign as witnesses though. Do it now.
  • If no relatives can be found, states typically give your assets to the local board of education where you lived.

What does a legal will involve? You can ask google for samples, but it typically breaks down to:

• state your name, intent to establish a will, and provide your signature
• verify in wording you are “of sound mind,” etc
• declare all children you have (heirs)
• declare any non-related persons you wish to receive assets and what they should receive (beneficiaries)
• declare a primary executor and one or more backup executors to close out your estate after your death (executing your estate will take 6 months to 4 years)
• have your will signed by two or three witnesses who have nothing to gain from the will (i.e. they are neither heirs or beneficiaries)
• for bonus points:
  • make your will “Self Proving” (in most states) by having it officially notarized before your death
    • If your will is not notarized, one of your witnesses will need to complete a form called Interrogatories to Witness and have it notarized before the court can accept your will
    • After you present either a Self Proving will or a will combined with notarized Interrogatories, probate court will accept the will as valid, assuming nobody contests the contents.
  • include a clause saying your executor does not need to submit an inventory to the court
  • include a clause saying your executor does not need to take out an insurance bond to protect the integrity of the estate while they administer it (expensive and unnecessary, but must be explicitly excluded)
  • include explicit clauses saying your executor has the rights to conduct all business as they see fit (manage accounts, manage investments, sell property, etc) without court oversight or interference. Those will be standard terms in most templates you’ll find online customized to the peculiar laws of each state.

If you have a will, after your death, your will must go through the legal process of probate where your designated executor will become the legal embodiment of you as if you were still alive.

If you do not have a will, someone can still “open” your estate to close out your final business. If you have heirs and a positive net worth, it is in their interest to take initiative and open your estate for their own benefit.

If you have a negative net worth or have no legal heirs, opening your estate is largely pointless. Though, even if an estate has no legal heirs, you can still collect payment (a percentage of everything entering and exiting the estate) for being an intestate administrator which could be significant if an estate has expensive assets.

If you have no legal heirs, any third party may “open” your estate with permission of the court. This could be anybody with an interest in the estate all the way down to a mortgage company wanting to sell property to recoup their principal.

Probate fees vary wildly by district but are typically between $200 to $500 for submitting a final will along with a legal petition to commence probate. California only has one form to file a will while other states split off into two forms: petition in solemn (preferred; can close an estate in 6-12 months) (example) or petition in common (example) (dumb; minimum 4 years to close an estate).

Even with a will, there’s still some legal ambiguity until your executor is empowered by a probate court to take control.

Your will must be submitted to your closest blood relatives (parents, siblings, children) for them to review and potentially object. If relatives cannot be contacted or are not known, the executor of your estate must pay an “heir search service” to locate any relatives you may have. After the heirs are located, they must sign off on your will even if you haven’t talked to them in 40 years (or, even if you never met them, like children of your siblings you have also been estranged from for 40 years). If the heir search service determines you have heirs but they cannot be found, probate court will place a public newspaper announcement for 4-6 weeks asking for any objections.

The “become executor/administrator” process can take 4-8 weeks though, and during those weeks, nobody is allowed to do anything with your property or estate. Nobody can sell your house/land, technically even entering your house (if you were the last one living there) is trespassing, nobody can sell your car(s), nobody can pay your bills (well, they can, then submit for reimbursement through the estate later), …. It’s not a quick process.

Once either either:

• your blood relatives all sign off and agree to the terms of the will
• or, the newspaper announcement expires with no objections

The introductory probate process is complete and your executor may proceed!

Your executor/administrator will be granted scary sounding Letters of Testamentary where the court empowers them with its full authority to act on behalf of your dead self in all legal matters until your estate is closed.

Your executor performs (in no specific order):

• take a legally binding oath to be an executor/administrator (may be given remotely by an out-of-area probate court if not near your probate county)
• open a bank account (and get a federal EIN) for The Estate of You
• collect life insurance payable to the estate
• publish a newspaper Notice to Creditors requesting any final debts be sent to the estate
• empty relevant accounts into the new Estate account
• check your paper mail for bills, utilities, and overdue notices (if applicable)
• check your email for bills, utilities, and overdue notices (if applicable and if possible—password escrow is rare)
• notify all credit cards, mortgages, hospitals, etc of your passing to close accounts
  • keep a spreadsheet!
  • keep an info sheet when calling about external accounts with the dead person’s birth date, SSN, names, addresses, etc. Your executor has to convince phone reps they are acting under your authority so they should have all your personal details at hand.
• sell all property not designated as passing to heirs or beneficiaries, deposit proceeds into Estate bank account
• pay any remaining debts from the Estate bank account
• wait a couple months for creditor notice to expire
• pay back any Medicaid benefits the state will hit you up for after you die
• file your final post-death state and federal tax returns
• eventually ask permission from probate court to close the estate
• disperse funds from Estate account to heirs/beneficiaries in proportion allotted in your will
• file final tax returns for the estate itself (hence the EIN)
• executors are typically allowed to take compensation in the form of 3-6% of the value of the estate they disperse before heirs and beneficiaries are paid
• file any final reports with probate court and request to be discharged/released from duty

And that’s that!

You are dead, your assets are all assigned to new people, and life marches on.

Unless you had any significant accomplishments, you will be completely forgotten within a generation.

Hope you enjoyed life while it lasted.

If you are reading this while still alive, please create a simple will. You can find free samples online, or you can pay flat fees for online will generators. If you have a complex situation, create a trust instead. In either case, you’ll be remembered more fondly for having been responsible before it’s too late.