Probate is a legal process, which is necessary for the assets of an estate to be dispersed once the owner dies. The courts oversee this process to ensure the stipulations of the will are followed. While this can be a lengthy process and delays may happen, it is a fairly straightforward situation. If a person dies without a will, probate is still necessary, but it will look different. The legal term is intestate, which is opposite of dying in testate or with a will.
Probate without a will can be quite helpful and even required many times. It ensures the family members receive the assets of the loved one who died while limiting the time creditors can file a claim against the estate. The court can deal with any disputes the family may have about who should get what from the estate. If real estate is involved, probate is usually necessary to transfer title to the heirs.
The Court’s Role in Probate
The court monitors the management of the estate, starting with approving or appointing someone to act on behalf of the estate as the executor or personal representative. When there’s a will, generally the court will accept the person named to handle the estate. When no will exists, it becomes a little more complicated.
Generally, the spouse of the deceased becomes the personal representative of the estate. If there is no spouse, it may be the child or another family member close in relation. Some states have laws that govern who may inherit and act as personal representative.
How Probate Works Without a Will
Probate begins in the same way whether a will exists or not. A petition to open probate is filed with the court in the county where the decedent lived. A copy of the death certificate is also filed at that time. The heirs or descendants of the deceased person are notified. A court hearing is held to determine who will manage the estate.
When a will is presented to the court, the heirs are listed with details about who receives which assets of the estate. If there is no will, the court must make the determination about who gets the assets based on state law. Most states will follow similar guidelines with spouses being first, children second and parents third.
The amount each person gets will vary with surviving spouses often getting half and the children receiving the other half. Sometimes, parents and grandparents may also inherit along with other relatives.
Steps to the Probate Process
Once the petition for probate is filed and a personal representative has been appointed, the process of probate continues in much the same whether a will exists or not. The basic steps are as follows:
The court often has more oversight and may need to approve each step prior to implementing. The representative may need to provide an accounting of everything for approval by the court.
Assets Not Subject to the Court
Not all assets are subject to probate even if there isn’t a will. Certain assets can be left out of probate if they have a beneficiary in place. Some examples include life insurance policies, funds from retirement accounts, stocks, securities, and bank accounts with a payable on death designation.
In some states, the law allows vehicles and other property to have someone listed as payable on death. Real estate may also be transferred in a few states if there is a quit claim deed. To know what assets may be excluded from probate, you would need to check with the laws of your state or talk to a probate attorney.
Another situation where assets may not need to be included in probate is if they are jointly owned. The surviving person who owns the property continues to have access to it. The ownership will transfer solely to them unless they choose to add someone else.
Complications from Not Having a Will
Even though states decide who will receive the property of a deceased person when no will was created, it is not always as easy as it sounds. Friends, extended family members, and organizations special to the deceased won’t get anything unless an heir decides to share.
A person who was only a boyfriend or girlfriend won’t get anything in the estate unless they were common-law. Even then, individual states decide how to recognize that relationship. In other instances, a decedent may have had children from a former relationship, a current spouse with children, or children with someone who isn’t their spouse. In this situation, it can be complicated as to who inherits first. Stepchildren may not inherit equally as biological or adopted children.
Some children may have to prove the relationship to inherit from their father. Each of these situations can cause an already tense situation to be even more frustrating. The only way to be sure that the people you want to get your assets actually receive them is to have a will.
If no heirs are found, the property could go to the state. This is one reason why it is important to take the time to create a will. However, if you have a loved one who has died without a will, knowing what happens next can prepare you for what must be done to ensure the rightful heirs receive the assets of their loved one.