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How Does Probate Work When There Is No Will? - Werner Law Firm

How Does Probate Work When There Is No Will?

Troy Werner and his family

Written by Troy Werner

Troy Werner has been an indispensable asset to The Werner Law Firm since joining in 2009, providing exceptional legal service to its clients.

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POSTED ON: November 4, 2021

Probate courts and the probate process are necessary for the validation of any last will and testament, as well as the arbitration of final debts and other financial obligations, and the ultimate distribution of a person’s estate left behind after death. Probate can and does work without a will and is necessary even if a […]

Probate courts and the probate process are necessary for the validation of any last will and testament, as well as the arbitration of final debts and other financial obligations, and the ultimate distribution of a person’s estate left behind after death.

Probate can and does work without a will and is necessary even if a person leaves no will behind after death. Because it’s such a vital step in the administration of a person’s material and financial legacy, the probate process needs to be approached carefully.

The court in charge, usually located in the county in which the decedent resided, will choose one person to administrate the process and carry out the logistic tasks associated with managing a deceased person’s financial obligations, final tax reports, debts, and the bequeathment of assets and property.

This administrator, or executor, is usually someone very close to the decedent, or their attorney. The executor can either be named in the will if the decedent had someone specific in mind, or they will be chosen by the court. In any case, it’s the court that has a final say in the matter.

What is the Probate Process?

The probate process itself is generally the same with and without a will. There are a few critical differences, but the heart of the matter remains as it always does: making sure that what once belonged to the decedent is distributed among the living, as the law instructs it.

Some of what the decedent owned might go to the state (taxes). Some of it will go to creditors (debt). Some will go to the next of kin (inheritance). All of it will be distributed, one way or another, as arbitrated by the court and carried out by the executor.

The probate process begins with the filing of a petition for probate in the courts of the decedent’s county of residence, using their death certificate.

Once a date is called for probate, and an administrator is named, it becomes their task to notify creditors (personally or through a public notice, such as a posting in the local papers), notify beneficiaries, tally the total value of the estate, take stock of what was left behind, manage and inventory everything, look after properties and other assets, deal with the decedent’s final obligations, take care of the management costs of dealing with estate property, arrange for the sale of certain assets (if the estate needs to be made liquid), and communicate with beneficiaries throughout the process.

The administrator has a fiduciary duty to the decedent and their beneficiaries at this point. If no will exists, then the estate will be distributed as per state intestate succession laws.

Intestacy means non-testate, or without testament, and generally refers to the guidelines set by the state in the case that the decedent’s final wishes weren’t known or legally ratified.

Intestacy succession is not the same between states. There are minute differences, such as whether or not adopted children can inherit, inheritance outside of marriage, and the exact way in which the estate and certain items within the estate can be distributed. In other words, who gets what depends entirely on where a person lived and died.

Things can become even more complicated when a person leaves behind property and assets in multiple different counties or states. A probate process must be started for each county in which a decedent owned an asset or property. These can be consolidated, and managed by the same executor, but it does add to the paperwork and administrative cost of the process.

Probate lasts nearly a year for smaller estates, and well over a year for larger ones. Depending on the state in which the probate process takes place, there may be options for expedited probate.

In California, for example, estates under a total value of $166,250 allow for an executor to create a small estate affidavit instead of going through the probate process in its entirety. Some states are also known for having much longer probate processes than others.

Is Probate Always Necessary?

Yes, but also not really. You cannot fully skip the probate process, but you can drastically cut down on its length and complexity, albeit only through some serious foresight.

For one, there are many things that a person owns or has control over that do not pass through probate when they die. These include:

You can massively reduce what actually goes through probate, with or without a will, by entering more assets and properties into trusts, naming beneficiaries for certain accounts and properties and making them transferable/payable on death, and taking advantage of your annual gift tax exemption limit in the years before your death.

By reducing the size of your estate before death, through trusts, gifts, and other means, you can make the probate process much smoother and simpler.

Do I Need a Will?

Wills can be used for more than just directing who gets what. A will can also determine who takes care of any children you leave behind, for example. And even if you massively reduce the size of your probatable estate, chances are that you will leave something behind that is otherwise unaccounted for.

A will makes it very easy for your loved ones to know what you want to have done with your belongings. If you are unmarried but live with a long-time partner, or have adopted children, then getting a will can clear up any questions and confusing troubles they might face after your death.

Can a Will Be Rejected?

One thing to keep in mind about wills is that there are state-specific rules for what they should look like. It isn’t always the best idea to craft one yourself or get a draft off the internet.

If you do, consulting with an estate planning professional before getting your will notarized is still the smart thing to do, just to look out for basic clerical errors that might come back to haunt your family.

If a loved one died without a will, then note that not all is lost. Yes, there are state-specific rules for how their belongings will be distributed – but there are also things that they may have left behind that are automatically bequeathed without a will, such as life insurance policies, certain financial assets, and other accounts.

Don’t be left in the dark about how your loved ones are planning their estate. Even beyond the help of a financial planner or estate planning professional, the most important thing is to communicate with your family and friends.


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