How to Start Probate Without a Will

If you recently lost a loved one, you may be tasked with the job of distributing assets from the deceased person. You must start by locating the will and presenting it to the probate court where the decedent lived.

Perhaps you have searched and searched, and you can’t find a will anywhere among your deceased loved one’s belongings. Maybe they never gave their probate attorney a will and none was found in a safe deposit box or other safe location. If you can’t find a will to file with the probate court, you can still start the probate process.

What does a will do?

Probate is a legal term for distributing the estate of someone who is recently deceased. A probate court oversees the tasks involved in dispersing the assets of the estate, which is handled by an executor or personal representative. A copy of the will and death certificate are filed with the court along with a petition to open probate.

The idea behind having the estate put into probate is that the probate court ensures that the administrator of the estate follows the instructions of the will. The court must first validate the will to start the estate administration process, which says the will is truly the last wishes of the person who died. Based on instructions in the will, the court will approve someone to act as estate administrator, which may be the deceased’s spouse, an attorney, or anyone else they trusted with the role. This happen at the first court hearing.

An Estate Intestate

When there is no will for a deceased person, the decedent’s estate is said to be intestate. This means that it must proceed according to the probate code for the state where the decedent lived. Each state has its own intestate succession laws about how probate is to be handled. Much of the time, the laws are similar to what’s found in other states.

Some states even use the Uniform Probate Code, which is a set of laws governing how probate is to be handled and who inherits when there isn’t a will. Other states will use a portion of the Uniform Probate Code and add other restrictions or rules in addition.

If the estate doesn’t have a valid will, the probate court will follow the laws of the state. This includes appointing someone to act as the personal representative as well as how the estate is to be distributed.

An Invalid Will

An estate will be handled intestate even if there is a will if it is disputed and determined to be invalid. This can happen if the person wasn’t of sound mind when the will was drawn up or if they were coerced into signing the will. They may not have even realized what they were signing. A probate hearing will be held to allow the person disputing the will to provide evidence to support their claim. If one of these situations can be proven in court, the court will invalidate the will and proceed as if one never existed.

Opening Probate Without a Will

The first step to start the probate process without a will is to petition the court to open it. You will need to provide a certified copy of the death certificate, to prove that the owner of the estate is deceased. You can bring it to the courthouse and request the proper forms for Petition for Letters of Administration. This tells the court that you want to be appointed as the personal representative of the estate.

Complete the form and file it with the office designated to handle these forms. You will need to provide the names and contact details of all living relatives of the deceased person.

The court will set a hearing date to determine whether to approve your request to be the personal representative or administrator of the estate. Once you are approved, the probate court will provide you with Letters of Administration. These letters allow you to act on behalf of the estate. This includes paying bills, gaining access to money, filing taxes, and selling assets.

The Job of the Administrator

The administrator of the estate or the personal representative will have to find any legal heirs for the estate. This includes parents, children, spouses, or other family members if those don’t exist. State probate laws divide the estate between the surviving spouse and children of the decedent. If they don’t have a spouse and children, the court will follow the line of heirs according to state law.

Another task for the estate administration is to secure and inventory all the assets of the entire estate, including real property and personal property. They must notify the creditors or publish notice in a local newspaper. As any creditor claims come in, the administrator will start paying debts owed from the decedent’s assets. They will file the final taxes for the deceased person’s estate and pay any taxes owed on the deceased person’s property. Once all other tasks have been completed, the administrator disperses the remaining assets according to the probate law of the state. They will transfer title of any assets previously owned by the decedent to the named heirs as part of the final distribution.

Who Gets the Inheritance When There’s No Will?

If there isn’t a recognized will with the estate, the spouse and children of the decedent usually get the remaining assets after debts have been paid. How it is divided up varies by state for intestate succession, but both parties get a portion of the estate. If there isn’t a surviving spouse and no children, the decedent’s parents are next in line.

Siblings come after the parents to distribute assets, and if neither is alive, it goes to the grandparents. Aunts, uncles, and cousins follow as distant relatives with intestate succession. Friends never inherit even if there are no living family members. The only way they can inherit from the estate is with a will.

If there are no family members still alive for an estate without a will, the state will receive the assets of the estate. This is one of the main benefits of having a will. The estate owner gets to decide who inherits the deceased’s assets after they die.

Property with Co-owners and Beneficiaries

There is an exception to following the state’s probate code for an estate without a will. If any assets have a beneficiary named, that asset will go directly to them and not go through the court system. It’s not included in the probate assets, which means it isn’t subject to the state’s probate laws.

A prime example is with life insurance policies. If the decedent had such a policy with someone named as a beneficiary, the money would go to them without being involved in the probate process. Bank accounts, retirement accounts, and other financial accounts may fit into this category. Some states recognize vehicles in the same way with a Transfer on Death (TOD) beneficiary. In this case, the named person would automatically get the vehicle and not be involved in the probate process.

If the decedent owned property with another person as equal owners, the surviving owner would become the sole owner after the decedent’s death. The property would need to be labeled as having joint owners with right of survivorship. Without the rights of survivorship, the decedent’s portion would go to the natural heirs.

Avoid Having an Intestate Estate by Writing a Will

The only way to make sure the people you want to inherit your estate are included in probate is by having a will drawn up. If you would like some of your estate assets to go to a non-family member, only a will provides for them. A will also ensures that family members you don’t want to be part of your estate are kept out.

Since probate is a legal process, you may want to contact a probate attorney for help in creating a will. They can ensure your wishes are followed and that the will is found at the time it’s needed.