Probate Process Without a Will
People sometimes mistakenly believe that they can avoid probate court if there is no will. That is generally not true.
While probate is the process of proving a will valid, estate administration ties up the loose ends of a person's financial life. Both probate and estate administration must be done in probate court.
Whether the deceased had a will or not does not matter. If they had personal property or real estate, life insurance proceeds from a work policy, a retirement account, or just a share of the family cabin, those assets need to be distributed to a surviving family member (heirs).
If the deceased person didn't leave a will to tell family members and loved ones where they wanted those assets to go, then the state will decide.
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
The legal term for dying without a will is “intestate." (The term for dying with a will is “testate.") The deceased person's property will be distributed according to the state's intestacy succession laws.
The estate administration process is supervised by a probate court judge who has jurisdiction over the estate. In many states, the court will first hold a hearing on the petition. If there is no will or there is no valid will, then the court will proceed to appoint an administrator to serve on behalf of the intestate estate.
Some types of property will be transferred to someone else without probate court. For example, the decedent's share of a property owned in joint tenancy with the right of survivorship. That will automatically go to the surviving joint owner. The only assets that will be handled in the estate administration process are those that have no legal ownership.
Appointing a Personal Representative
A will usually names an executor to handle the hands-on work of probating the estate after the testator's death. When there is no will, someone will need to 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. After all, it is in their interest to see that the property doesn't languish or disappear. They want to see it distributed, and they want to benefit. However, in many states, any interested party may petition the court to be appointed, including a creditor of the estate.
Also, 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 process, then, is for the probate judge to review the petition and to determine whether they will appoint the applicant as the personal representative or someone else.
State law does have some restrictions on who can act as an administrator or personal representative. They must be 18 years of age, of sound mind, and without a criminal record (or a certain kind of criminal record). The law varies from state to state.
The person petitioning to be the personal representative may also have affidavits from other heirs agreeing to their 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 of the petitioner, they may assign a county administrator (usually a lawyer) or other probate-related agency to take on the role. This is usually only done if there is no one who has agreed 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 and easily identifiable heirs are, in order of inheritance rights: surviving spouses, children, parents, and siblings. Closer relatives will receive an inheritance before distant relatives. If the deceased did not have any of this class of family member, then intestate success laws will specify more distant relatives: aunts and 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 will determine what estate assets to distribute and how to distribute them.
The personal representative has to collect the deceased's assets and real property, including bank accounts, life insurance policies, vehicles, real estate deeds, and personal property. Once these assets are documented, the personal representative must determine the value of the estate.
The personal representative also needs to gather information on all of the debts owed by the deceased. Before they can distribute assets, they must pay the estate's debts and taxes.
In most cases, the distribution of remaining assets will be shared among relatives. The probate court will hold a hearing on the petition for final distribution and accounting. The probate court will finalize the process by issuing an order approving the final distribution and accounting.
Concluding the Estate Administration Process
In many states, after paying all the debts and making the final distribution of any remaining assets, the court will issue a final discharge order. After that, the estate administration process comes to an end and the case is closed.
Need Legal Advice on Probate Without a Will?
If a member of your family has died without a will, get legal guidance to understand your inheritance rights. You may want to petition the probate court to be named as a personal representative. A local probate lawyer can help you understand the process and your inheritance rights.
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