No Will; Who Gets the Ashes? Probate for Intestate Estates

 

https://www.avvo.com/attorney-answers/53548-wi-jay-nixon-1529181/answers.html

 

How do I go about getting all of my ex-husbands/9 yr. old sons fathers belongings from his mother including my son’s father’s ashes?   . . .did not leave behind a will but has told many ppl that if anything ever happened to him, he wanted our son to have everything. well his mother has taken EVERYTHING . . .

Jay’s Answer (Jay K. Nixon, Probate Attorney with offices in Kenosha & Janesville, WI)

Unfortunately, verbal promises, family relationships and desires will get you nowhere in probate court. Instead, the court is forced by the law to follow strict rules of decent, succession and control set up by the state legislature for “intestate” (without a will) cases; or to act on all those issues as is called for in a valid will, if there is one. That is why living trusts have more or less replaced wills these days as the estate planning document of choice.  In those, with proper planning, more informal arrangements can be set up before death, which continue seamlessly after death, with no need to involve any court in most cases. Here, without a will or a living trust, there is literally nobody in charge until a court appoints somebody, and that will not happen on its own. Instead, a lawyer needs to prepare and file roughly 8 complex forms, and petition the probate judge to appoint somebody as the personal representative (fka "executor"), give notice to known family and creditors, and publish a notice of hearing in the local newspaper's legal notices section, among other things. Subject to court oversight.  Then, the personal representative can then make all those decisions, including distribution of the ashes and personal effects. Any family member can file such a petition, and request that they themselves or anyone else be appointed as personal representative, which request will nearly always be granted if nobody else objects to or files their own competing petition. Until then, regrettably, the legal system will be unavailable to assist you in resolving these family disputes. Therefore, you should talk to an experienced probate lawyer if you wish to solve these problems, otherwise it’s "every man for himself," indefinitely, until some eventually steps up to the plate to take charge.