Probate Process Without a Will
People sometimes believe they can avoid probate court if there is no will. That is generally not true.
Whether the deceased had a will or not does not matter. Assets of the estate need to be distributed. These assets can include personal property, real estate, life insurance proceeds, a retirement account, or just a share of the family cabin. The decedent's assets must go to a surviving family member ("heir") or named beneficiary.
Probate is the process of proving a will valid. But estate administration ties up the loose ends of a person's financial life. Aspects of both probate and estate administration must occur in probate court. When a person dies without a will, state law will decide the disposition of the estate for assets subject to probate.
How does the estate administration process without a will differ from a probate proceeding when there is a valid will? Read on to learn about probate without a will.
Estate Administration for Intestate Succession
Estate planning is an important process that can make settling an estate easier for loved ones. It can make the probate process more efficient or unnecessary when a person gets legal advice from an estate planning attorney. But in some cases, the deceased person does not have a last will and testament.
The legal term for dying without a will is intestate. (The term for dying with a will is testate.) An estate without a will proceeds through the intestate legal process under state law. The deceased person's property will be distributed according to the state's intestacy succession laws.
A probate court judge supervises the estate administration process. This judge has jurisdiction over the estate. This means that the probate judge can decide matters relating to the estate according to the law. In many states, the court will first hold a hearing to begin the probate process.
To "open probate," the personal representative named in the will, or another individual, must file an application or petition with the probate court asking the court to accept the deceased person's will. If there is no valid will, the court will appoint an administrator to serve on behalf of the intestate estate after court proceedings.
Some types of property transfers without probate court involvement. This includes a decedent's share of a property owned in joint tenancy with the right of survivorship. Such property automatically goes to the surviving joint owner. Assets are also transferred to named beneficiaries on payable-on-death or transfer-on-death accounts without going through probate. They are considered "non-probate assets." The only assets handled in the estate administration process are the decedent's property or those assets owned by the estate that will be distributed to heirs based on the terms of a will or according to state law if there isn't a will.
Appointing a Personal Representative
A will usually name someone called an "executor" or "personal representative" to administer the property after the testator's death. When there is no will, someone must petition for the role. An administrator appointed by the probate court (also called a personal representative ) has the same responsibilities and duties to manage the estate administration process as an executor named in a will.
Usually, a family member who stands to inherit some of the assets of the estate fills out the petition to the court. In many states, probate laws allow any interested party to petition the court. The person who takes on the role of administering the estate can be paid a fee for doing that work.
The first step in the estate administration is for the probate judge to review the petition. Through this legal process, the judge determines whether to appoint the applicant.
State law restricts who can act as an administrator or personal representative. They must be 18 years old, of sound mind, and without a criminal record (or a certain kind of criminal record). The person petitioning for personal representative may have affidavits from heirs supporting the petition. They must also provide a copy of the death certificate and a preliminary list of assets.
If the probate court judge does not approve the petitioner, the judge may assign a county administrator, usually a lawyer, or another probate-related firm to take on the role. This occurs only if the petitioner is not approved and no other suitable person agrees to take on the role.
Identifying Heirs When There Is No Will
State laws on intestate succession identify classes of heirs. These classes determine the order of distribution of assets among the heirs and the share of the estate they will inherit.
The most common heirs are surviving spouses, children, parents, and siblings. Closer relatives will receive an inheritance before distant relatives. Intestate succession laws would specify more distant relatives if the deceased had no close family member heirs. These include aunts, uncles, and cousins.
Friends and charities do not receive anything under intestate succession. If there are no surviving family members, most states will order that the entire estate goes to the state.
Distributing the Estate Assets and Paying Debts
After appointing a personal representative and identifying the heirs, the probate court determines what assets of the estate to distribute and how to distribute them.
The personal representative must collect the estate's assets. An estate's assets could include the following:
- Real property
- Bank accounts
- Life insurance policies
- Personal Property
Once all assets are documented, the personal representative must determine the estate's value.
The personal representative also needs to gather information on all the debts the deceased owes. Before distributing assets, they must file and pay any debts and tax obligations.
Concluding the Estate Administration Process
When the personal representative is ready to pay the estate taxes and debts and distribute any remaining assets to the heirs, they will file their distribution plan with the court as a petition. If the court approves the petition, it will issue an order allowing the personal representative to proceed with their plan.
In many states, the court will issue a final discharge order once the distribution plan is completed. After that, the estate administration process comes to an end. The court will then close the probate estate case.
Need Legal Advice on Probate Without a Will?
If a family member or loved one dies without a will, get legal guidance from a local probate lawyer. A probate attorney can help you understand your inheritance rights and guide you through the probate process. You may want to petition the probate court to be named as a personal representative.
Can I Solve This on My Own or Do I Need an Attorney?
- Complex probate situations usually require a lawyer
- A lawyer will take these matters seriously and enforce protections
- Get tailored advice and ask your legal questions
- Many attorneys offer free consultations