{"id":287056,"date":"2017-08-12T18:17:16","date_gmt":"2017-08-12T23:17:16","guid":{"rendered":"https:\/\/content.findlaw-admin.com\/ability-law\/estate\/probate\/probate-without-a-will.html"},"modified":"2024-12-03T14:42:00","modified_gmt":"2024-12-03T19:42:00","slug":"probate-without-a-will","status":"publish","type":"page","link":"https:\/\/www.findlaw.com\/estate\/probate\/probate-without-a-will.html","title":{"rendered":"Probate Without a Will"},"content":{"rendered":"\n
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Probate Without a Will<\/h1>\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

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Key Takeaways<\/h2>\n

Probating an estate when someone dies without a will follows a particular process. After death, the probate court appoints an administrator of the deceased\u2019s estate. The administrator then identifies the heirs, assesses the value of the assets, informs potential creditors, pays debts, and distributes assets.<\/p>\n\n <\/div>\n <\/div>\n<\/div>\n

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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.<\/p>\n

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.<\/p>\n

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.<\/p>\n

Probate Basics<\/b><\/h2>\n

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

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\u2014children\u2014and so on, in succession. This is called \u201cintestate succession.\u201d<\/p>\n

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\u2019s Estate Planning Forms<\/a>.<\/p>\n

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.<\/p>\n

Benefits of Going to Probate Court When There Is No Will<\/b><\/h2>\n

Prevent and Resolve Conflicts: <\/b>Probate court provides a final decision to answer the legal questions that arise when someone dies without a will.<\/p>\n

A death in the family doesn\u2019t always bring out the best in people. Being able to turn to the law can make it easier to resolve disputes – the \u201cblame\u201d for a decision shifts from the personal representative to the judge. Probate can\u2019t guarantee heirs won\u2019t want to fight things out in court, but in most cases, intestate succession laws<\/a> prevent disputes.<\/p>\n

Cut Off Creditor Claims<\/b>: When the probate process begins, creditors have a set amount of time to bring a claim against the estate. A creditor can\u2019t come after a family member<\/a> 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.<\/p>\n

Legally Transfer Title:<\/b> Sure, you can drive away with Uncle Dave\u2019s car, but you can\u2019t actually own it unless you transfer the title. Unless real property \u2014 like a car, a home, or a boat \u2014 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.<\/p>\n

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\u2019s laws.<\/p>\n

Take Money Out of Accounts<\/b>: 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.<\/p>\n

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.<\/p>\n

What\u2019s the Role of the Court?<\/b><\/h2>\n

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\u2019s estate go to the proper place.<\/p>\n