How To Probate An Estate Without A Will
Probate without a will: How does it work?
Probate is often defined as the process of proving a will. So what happens when someone dies without a will?
You might be surprised that the probate process includes the same steps — whether there is or isn’t a will. You’ll need to:
1) Petition your local probate court to become the legal representative of the estate.
2) Notify the deceased’s heirs and debtors.
3) Change legal ownership of assets from the deceased individual to the "Estate of [The Deceased]."
4) Pay funeral expenses, taxes, and debts. Then transfer assets to the heirs.
5) Tell the court what actions you’ve taken and close the estate.
What's the difference between probate with a will and probate without a will?
So if the process is the same whether there is or isn’t a will, why do people even need them?
Well, when someone dies with a will in place, the court and the executor must follow the instructions included in that will (with a few small exceptions) about who will serve as legal representative of the estate and how assets will be distributed. When someone dies without a will, the court and the administrator must follow the relevant state laws about who will serve as legal representative and how assets will be distributed.
So the primary difference is not about how the process works but about who’s making the decisions - the deceased or the state.
What is intestate succession?
When someone dies without a will, they have “died intestate.” So the state laws that govern the distribution of assets in that case or called “intestate succession” - the priority of asset distribution when someone has died intestate (or without a will).
Each state will have some differences in the specific Intestate Succession laws, but in all cases, funeral expenses, taxes, and debts must be paid before any assets are distributed to heirs. Once those are taken care of, most state laws will follow this structure:
1) Surviving Spouse — The surviving spouse will likely inherit all the assets. At a minimum, they will receive a third to a half of the assets.
2) Children — Natural born or adoptive children usually inherit the remaining portion of assets that the spouse didn't receive, if any remains.
3) Parents — In most states, parents of the deceased receive an inheritance only if there is no surviving spouse and no surviving children.
4) Siblings — Often, if no surviving spouse or children exist, siblings of the deceased will inherit a part of the estate.
5) Extended Family — Cousins, aunts, or uncles may be eligible for an inheritance if there are no immediate (spouse, children, parents, siblings) family members of the deceased.