{"id":287055,"date":"2017-08-14T15:59:45","date_gmt":"2017-08-14T20:59:45","guid":{"rendered":"https:\/\/content.findlaw-admin.com\/ability-law\/estate\/probate\/probate-process-without-a-will.html"},"modified":"2025-07-24T02:38:00","modified_gmt":"2025-07-24T07:38:00","slug":"probate-process-without-a-will","status":"publish","type":"page","link":"https:\/\/www.findlaw.com\/estate\/probate\/probate-process-without-a-will.html","title":{"rendered":"Probate Process Without a Will"},"content":{"rendered":"\n
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Probate Process Without a Will<\/h1>\n\n
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\n By FindLaw Staff<\/a> | Legally reviewed by Aisha Success, Esq.<\/a>\n | Last updated\n
\n \n <\/i>\n Legally Reviewed\n <\/summary>\n\n
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This article has been written and reviewed for legal accuracy, clarity, and style by FindLaw\u2019s team of legal writers and attorneys<\/a> and in accordance with our editorial standards<\/a>.<\/em><\/p>\n\n <\/div>\n <\/details>\n\n

\n \n <\/i>\n Fact-Checked\n <\/summary>\n\n
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The last updated date refers to the last time this article was reviewed by FindLaw or one of our contributing authors<\/a>. We make every effort to keep our articles updated. For information regarding a specific legal issue affecting you, please contact an attorney in your area<\/a>.<\/em><\/p>\n\n <\/div>\n <\/details>\n<\/section>\n\n\n

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Key Takeaways<\/h2>\n

Probate without a will, known as intestate succession, involves a probate court overseeing the distribution of a deceased person’s assets according to state laws.<\/p>\n\n <\/div>\n <\/div>\n<\/div>\n\n\n

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People sometimes believe they can avoid probate court if there is no will. That is generally not true.<\/p>\n

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.<\/p>\n

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.<\/p>\n

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.<\/p>\n

Estate Administration for Intestate Succession<\/h2>\n

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\u00a0estate planning attorney<\/a>. But in some cases, the deceased person does not have a last will and testament.<\/p>\n

The legal term for dying without a will is intestate. (The term for dying with a will is\u00a0testate<\/a>.) 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\u00a0state’s intestacy succession laws<\/a>.<\/p>\n

A probate court judge supervises the estate administration process. This judge has\u00a0jurisdiction<\/a>\u00a0over 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.<\/p>\n

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.<\/p>\n

Some types of property transfer without probate<\/a>\u00a0court 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.<\/p>\n

Appointing a Personal Representative<\/h2>\n

A will usually name someone called an “executor” or “personal representative” to administer the property after the\u00a0testator’s<\/a>\u00a0death. When there is no will, someone must petition for the role. An\u00a0administrator<\/a>\u00a0appointed by the probate court (also called a\u00a0personal representative<\/a>\u00a0) has\u00a0the same responsibilities and duties<\/a>\u00a0to manage the estate administration process as an executor named in a will.<\/p>\n

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.<\/p>\n

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.<\/p>\n

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.<\/p>\n

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.<\/p>\n

Identifying Heirs When There Is No Will<\/h2>\n

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.<\/p>\n

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.<\/p>\n

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.<\/p>\n

Distributing the Estate Assets and Paying Debts<\/h2>\n

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.<\/p>\n

The personal representative must collect the estate’s assets. An estate’s assets could include the following:<\/p>\n