Probate Without a Will

If a deceased dies without a will, the probate court appoints a representative, the estate administrator. The administrator handles the estate and other affairs of the deceased. They are responsible for determining the heirs and their shares and creating an inventory of the deceased's assets. The administrator also informs potential creditors about the death and establishes a deadline for when they can submit a claim.

After the administrator verifies the debts, the administrator settles them using the estate funds. Once all the debts are settled, the administrator transfer the deceased's remaining assets to the heirs. This structure of the probate process without a will ensures a fair and lawful handling of the estate.

This article explains why the probate process is beneficial when someone dies without a will. Then, it discusses how to petition to start the probate process and the steps you will take to complete probate.

Probate Basics

When someone dies without a will, this is known as intestacy. Under the law, your family members are entitled to inherit any remaining assets after your final debts have been paid.

A surviving spouse is first to inherit, followed by children, parents, siblings, aunts and uncles, nieces and nephews, and cousins. If no one is in the first category, the inheritance goes to the second category—children—and so on, in succession. This is called “intestate succession.”

The entire estate goes to the state if no relatives can be found. If you want someone else to inherit, you need to draft a will to name them as a beneficiary. Only family members are heirs under state intestate succession laws. You can easily and cheaply draft a simple last will and testament using FindLaw’s Estate Planning Forms.

The critical first step is for someone to start the probate process. Usually, that will be done by one of the heirs. They will petition the court to be named a personal representative. That will kick off the legal process.

Benefits of Going to Probate Court When There Is No Will

Prevent and Resolve Conflicts: Probate court provides a final decision to answer the legal questions that arise when someone dies without a will.

A death in the family doesn’t always bring out the best in people. Being able to turn to the law can make it easier to resolve disputes - the “blame” for a decision shifts from the personal representative to the judge. Probate can’t guarantee heirs won’t want to fight things out in court, but in most cases, intestate succession laws prevent disputes.

Cut Off Creditor Claims: When the probate process begins, creditors have a set amount of time to bring a claim against the estate. A creditor can’t come after a family member a year later asking for money. Depending on the laws of the state, probate can reduce the time creditors can file a claim to as few as three months.

Legally Transfer Title: Sure, you can drive away with Uncle Dave’s car, but you can’t actually own it unless you transfer the title. Unless real property — like a car, a home, or a boat — is jointly owned (joint tenancy with right of survivorship) or held in a trust, it typically needs to go through probate to transfer the name on the title.

That said, shared personal property and real estate owned by a couple in a community property state may transfer automatically to the surviving spouse. Review your state’s laws.

Take Money Out of Accounts: Bank accounts, retirement accounts, IRAs, investment accounts, and life insurance policies may have been set up to transfer automatically to a beneficiary. A POD (payable on death) or TOD (transfer on death) account includes a named beneficiary when the account is set up. If it is a joint account, the co-owner will now own it.

If financial accounts were not set up this way while the person was alive, the only way for a family to access the funds in the accounts is through the probate process.

What’s the Role of the Court?

The primary job of the probate court judge is to oversee the process that lawfully resolves the financial affairs of deceased persons. The probate court ensures all remaining assets in the decedent’s estate go to the proper place.

• The probate court judge selects the personal representative.

• The court establishes a timeline by which certain things will happen in the process.

• The court resolves legal questions, such as:

  • Is this a valid creditor? Must this bill be paid?

  • Does this person have a right to inherit? What percent of the estate’s assets will they inherit?

  • What does the probate code say about the property rights of the deceased’s spouse? Is a certain item separate property or community property?

• The court oversees the work of the personal representative in an effort to ensure they comply with the law and do not illegally profit at the expense of other family members.

Starting Probate Without a Will

If you want to serve as the personal representative for an estate without a will, you start by filing a petition in probate court. Here’s a step-by-step look at how to get the process going.

1. Review the deceased person’s assets to see if the estate qualifies for a small estate probate exemption. You will need to produce an itemized list of all personal property needing distribution and determine a value for the estate.

2. Determine where to file for probate. Generally, it’s the county in the state where the person lived. If they own a home, it may be the county where the home is located.

3. Bring a certified copy of the death certificate to the courthouse and request forms to Petition for Letters of Administration. Also, be prepared to provide the names and addresses of all living relatives.

4. Complete and file the petition requesting administration. By filing this document, you’ve now asked the court to appoint you as the personal representative of the estate.

5. You’re required to let everyone know you’re petitioning for probate. Send a notification to the homes of all family members. You’ll need to publish in a local newspaper to inform creditors and others that a Notice of Petition to Administer Estate has been filed. This serves as a Notice to all creditors to file their claims against the estate. Creditors usually have four months to file their claims.

6. At your first court hearing, your petition is granted unless another more suitable representative comes forward. After you have received Letters Testamentary, a document from the probate court that gives you the authority to act, you are now ready to move forward with the probate proceedings.

Questions About Probating an Estate Without a Will? Talk to a Probate Lawyer

Dying without a will could result in a big fight among family members. However, state intestate succession laws prevent that (to some extent) by designating how a deceased person’s assets are distributed to family members. When you have probate questions, get help from an experienced local probate attorney. Skillful legal help at the right time saves you money and headaches.