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Probate Without a Will: How Does It Work?

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: September 8, 2021

Probate without a will can be a lengthy, confusing process. Dying without a will can complicate the succession asset distribution process, based on state laws. A person's death is succeeded by the dissolution of their estate, or in other words, the distribution of everything they own. While we may mourn and honor the dead, most […]

Probate without a will can be a lengthy, confusing process. Dying without a will can complicate the succession asset distribution process, based on state laws.

A person's death is succeeded by the dissolution of their estate, or in other words, the distribution of everything they own. While we may mourn and honor the dead, most of their material wealth must be transferred among the living, usually among blood relatives and family, and in rarer cases, friends and acquaintances. In most cases, a special court called a probate court oversees this transfer.

Managing how and when an estate is distributed among one's friends and loved ones is called estate planning. This distribution can only be done with the explicit consent or direction of the person in question. But what happens if you die without having made any plans at all? What happens to your things when you pass away without a will or trust? Does probate still take place?

The answer is yes. Probate takes place regardless of whether there is a will or not. Wills provide direction for the administrators of an estate during the probate process – but without them, estates must still be probated and dissolved after death.

What is the Probate Process? 

As the name implies, the probate process is a legal method for proving or validating a will. However, it can and does still take place without a will

In these cases, a person will have died intestate (meaning "without leaving a testament"), and the probate court will oversee the distribution of the estate based on the laws of succession in the state in which the decedent lived (i.e., their county of residence). 

This effectively means that the administration of the estate will proceed as per state law rather than the wishes of the decedent. But probate is still initiated much the same way, by: 

  • Taking the decedent's death certificate to the offices of the county in which they primarily resided and filing a petition for probate. 
  • Notifying all heirs and descendants. 
  • Determining an administrator during the court hearing, usually a relative, to oversee the distribution of assets.
  • Getting an appraisal of all assets and property at the time of death. 
  • Notifying creditors and waiting for their claims.
  • Managing and preparing assets and property for distribution. 
  • Distributing the estate. 

Because state laws differ, people who died while owning property and assets in multiple states will require various concurrent probate processes, one for each state where they hold assets and property.

There are special considerations and shortcuts for estates with assets and property in multiple states to save both time and money (as the costs of opening a complete probate process in each state would otherwise be astronomical). 

What Happens if you Die Without a Will? 

Succession and asset distribution is based on state law. The specific rules of succession may differ from state to state, but the most significant difference exists between states with community property and states that do not. 

Community property states require that all community property is inherited by the spouse, for example, while half of the decedent's separate property also goes to the surviving spouse, and the remainder to the closest relative (children first, followed by siblings, parents, and so on). 

In states without community property, the most common provision would be that the surviving spouse gets the lion's share, and the rest is distributed among the next of kin. 

Spouses and children may be defined differently from state to state. Unmarried partners cannot inherit in intestacy, but registered domestic partners can. While blood relatives can inherit, close friends cannot. 

If the decedent was in the middle of a divorce, which had not yet concluded, a judge might have to decide on whether the surviving spouse will still receive their part of the estate. 

Adopted children inherit just as biological children do, but foster children do not. In most states, stepchildren do not inherit, but it depends on the circumstances of the marriage and relationship in other states. 

Things can get even more complicated with an heir dies. If someone who was supposed to inherit has passed away, their offspring or parents may inherit instead. Then, there are state-specific rules on how the share of a single heir may be split if their surviving beneficiaries are multiple people. 

For example, if a portion of your estate was meant to go to your sister, but she died during the probate process, leaving behind three adult children, the portion of the estate going to them may be split evenly in three. 

It's always a good idea to direct specific questions regarding intestacy laws and inheritance in your state to a local probate attorney. 

Probate Litigation Without a Will

Probate litigation occurs when a family member or concerned party contests the validity of a will and challenges it. There cannot be probate litigation without a will. 

Choosing an Executor Without a Will

Executors, or administrators, are always chosen by the probate court. Even when a will exists, the testator's choice in their will may influence the court's decision greatly, but it is still the court's decision. 

That being said, the choice of administrator for the estate is usually straightforward. Whoever steps up to handle the early responsibilities of initiating and managing the probate process will often be asked to continue administrating the estate with the help of a legal professional. 

What Role Does a Probate Attorney Play Without a Will?

While the lack of a will means that the administration of the estate must largely follow a set path as per state law, a probate attorney is still required to help the executor navigate the administration of the estate. 

To recap what a probate attorney does, let's remember the basic steps of how probate begins. You need a death certificate, and you need to file the petition to begin probate. Next, you need to get an accurate and recognized appraisal of the valuables within the estate. You also need to deal with the decedent's final tax return and their financial obligations before and shortly after death, and so on. 

There are multiple steps to preparing for the probate process, not to mention navigating the process itself, from the appointment of the executor to the letter to the creditors to the final distribution of property. 

It is a probate attorney's job to provide certain services throughout this process, from answering questions, reminding you of specific deadlines, taking on complex tasks or tasks you aren't comfortable doing, and drawing up important court papers. 

Probate lawyers also provide specific legal advice along the way, such as dealing with formal claims from creditors. 

The probate process can be lengthy and complex, but there are ways to expedite or simplify it depending on where you live. Nothing beats getting an estate plan up and running before you pass away, of course. Estate plans can allow you to simplify or even eliminate most of your probate worries, prepare your heirs, and help your family make the most of your estate. 

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