Probate Without a Will

When someone dies without a will, loved ones must figure out how to transfer or distribute the deceased person's property. This usually requires going to probate court. Administering an intestate estate, an estate without a will, does not have to be daunting.

When someone dies without a will, loved ones must figure out how to transfer or distribute the deceased person's property. This usually requires going to probate court.

Many people have a negative perception that estate administration is complicated and expensive. While this can be true, it is not always the case. Administering an intestate estate, an estate without a will, does not have to be daunting.

State probate laws and local probate court procedures dictate the process. They control the process for administering an estate without a valid will.

This article explains why the estate administration process is beneficial when someone dies without a will. Then, it discusses how to petition the court to open the estate administration process. It explains the basics of probate without a will. It also outlines the steps you will take to complete the probate court process.

Most people will find working with a probate lawyer essential to a smooth estate administration process. Some states require an attorney to open a probate matter. Knowing the basics can help you know what to expect during the process.

Estate Administration Basics

Look around your home or apartment, then imagine dying without a will. The following questions may come to mind:

  • Where would your things go?
  • Who would take care of your dog?
  • Who would close your bank accounts?
  • Who would stop automatic billing payments?
  • Does your landlord now own your remaining assets?
  • Do reoccurring bills get paid until there's no money left in your bank account?

Let's hope not. Under the law, if you don't have a will, your family members are entitled to inherit any remaining assets. Assets may be distributed to beneficiaries and heirs once no final debts remain.

A personal representative pays the probate estate's debts during the estate administration. Estate administration is the court procedure around opening an estate.

When someone dies without a will, it's known as intestacy. Dying without a will could result in a fight among family members. But state intestate succession laws help prevent that.

The laws designate the process for distributing a deceased person's assets to family members. In most states, intestate succession occurs in the following order:

  • Surviving spouse
  • Decedent's children
  • Decedent's parents
  • Decedent's siblings
  • Decedent's aunts and uncles, nieces, and nephews
  • Decedent's cousins

If no one is in the first category, then the inheritance goes to the second category — children — and so on, in succession. This order of distribution is called "intestate succession." The entire estate goes to the state if the property isn't distributed to relatives. You must draft a will if you want someone else to inherit your property.

Making Decisions in a Will

You can name anyone you want as a beneficiary when you, or an estate planning attorney, draft a will for you. Intestate statutes determine who will get your property if you fail to execute a valid will.

State intestate succession laws only provide for family members and heirs. You can easily and cheaply draft a simple last will and testament using FindLaw's Estate Planning Forms.

Benefits of Going to Probate Court When There Is No Will

An heir is typically the person who begins the probate court process. They will petition the court to be named a personal representative. That will kick off the legal process. As discussed below, proceeding in probate court has several benefits.

Prevent and Resolve Conflicts

The probate court provides a final decision to unanswered 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.

Estate administration can't guarantee the heirs won't want to fight in court. However, in most cases, intestate succession laws prevent disputes.

Cut Off Creditor Claims

When the probate court 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 state laws, estate administration can reduce the time creditors can file a claim to as few as three months.

Legally Transfer Title

Property subject to a title typically needs to go through the probate process to transfer the name on the title. This includes a car, a home, or a boat. If the property was jointly owned, such as real estate, with a joint tenancy with right of survivorship or held in trust, the title issues are settled.

That said, shared personal property and real property 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

Particular property can be transferred automatically through a beneficiary designation. These assets pass outside the probate process. These types of assets include:

  • Bank accounts
  • Retirement accounts
  • IRAs
  • Investment accounts
  • Life insurance policies with life insurance proceeds 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.

Financial accounts must be set up with a beneficiary designation while the person is alive. Otherwise, the only way for a family to access the funds in the accounts is through the probate process.

What Is the Role of the Court?

The probate court judge's primary job 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 process can generally look like this:

  1. The probate court judge selects the personal representative.
  2. The court establishes a timeline by which certain things will happen in the process.
  3. 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?
  4. The court oversees the work of the personal representative. The court seeks to comply with the law and not illegally profit at the expense of other family members.

Estate Administration Without a Will

When a person dies, someone needs to do the work. Someone must close out their estate. Most aspects of probate are governed by state law.

If you want to serve as the personal representative, 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. The personal representative must determine the estate's value.
  2. Determine where to file probate. Generally, it's the county in the state where the person lived. If they own a home, it may be the county corresponding with the home's location.
  3. Bring a certified copy of the death certificate to the courthouse. Request forms to Petition for Letters of Administration. Be prepared with the names and addresses of all relatives considered heirs according to the state's intestacy laws.
  4. Complete and file the petition requesting administration. The petition asks the court to appoint you as the estate's personal representative.
  5. You're required to let everyone know you're petitioning for probate. Send a notification to all family members' homes. You'll need to publish in a local newspaper. This will 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, the court can grant the petition. The court grants the petition unless another more suitable representative comes forward. You will receive Letters of Administration. This document from the probate court gives you the authority to act. At this point, you are now ready to move forward with the probate proceedings.

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

Probate isn't always complex. However, it is a very detailed process. A personal representative can be personally liable for mistakes made in the process. When you have probate questions, get legal advice from an experienced local probate attorney. Skillful legal help at the right time saves you money and headaches.

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