Intestate Succession - How To Probate When There Is No Will?

What if your loved one died without a  will?

First off, you’re not alone. Courts frequently handle probate cases without wills, and the process isn’t that different from probate with a will.

The Process of Probating an Estate Without a Will

When your loved one dies without a will, you (or whoever intends to be the legal representative), must open an estate and complete probate, the process of court-supervised distribution of the assets of the deceased.  The process the court uses when there is no will is called Intestate Succession.

What is Intestate Succession?

The phrase may sound intimidating, but Intestate Succession is simply the process that each state has defined in state law to prioritize inheritance when someone dies without a will.

Since a will is a legal document that gives instructions to the court and the executor on how the deceased wanted their assets distributed, without a will, courts must follow some other guide on how to distribute assets. State law provides that guide.

Fortunately, the process is essentially the same for an intestate (no will) estate. You will generally use the same probate forms as someone who is administering an estate with a will. The primary difference is who can be nominated as the administrator of the estate.

We’ll dive deeper into that difference below

Priority for Intestate Succession

State laws prioritize  both who can be the administrator and who will inherit from an intestate estate. Of course, state laws can vary, but the general order for both administrators and heirs is:

1) Surviving spouse of deceased

2) Children of deceased, or the offspring of children (grandchildren, if adults)

3) Parents of deceased

4) Siblings of deceased

5) Grandparents of deceased

6) Aunts and uncles of deceased and other extended family

Note that only family members are included is in the intestate succession priority, so only blood relatives or legal spouses/unions will have a claim to the estate.

The rest of the probate process is the same as if the deceased had a will. Take a look at the probate process and what you need to consider to successfully probate an estate.

Suggested further readings

FindLaw: Understanding Intestacy: If You Die Without an Estate Plan

NOLO: How an Estate Is Settled If There's No Will: Intestate Succession

National Paralegal College: Intestate Succession Rules