Who inherits when there is no will?
If you’ve recently lost a loved one, you may have searched for a will to determine what to do with their estate. If you failed to find a will, you might be in a state of panic. How are you going to divide up everything they owned if there are no directions on what to do? Probate becomes more complicated when this happens, but state law provides direction for what to do when no will exists.
If you are overwhelmed by the idea of handling an estate of a loved one, especially of someone who dies without a will, you can seek legal advice with an experienced probate attorney. They can help guide you on the necessary steps and even take care of many of the tasks if you hire them for the process.
What is Probate?
Probate is the legal process of dispersing a person’s estate after they die. The court oversees this process according to stipulations set in the state law. Many times, probate without a will isn’t a lot different than when a will is present.
The probate process when there is no will is known as intestate succession. This is a unique phrase used to state that someone died without leaving a will.
How to Open Probate Without a Will
Opening probate is the same whether a will exists or not. You will fill out some forms and submit to the court, which is tasked with the job of overseeing this process. You won’t have a will to file with the court, which is one difference with an intestate succession.
To determine how probate will work for an estate without a will, the court will follow the guidelines set by the state, which usually focuses on which blood relatives inherit from the estate. Each state has its own laws for the order in which family members and others will inherit. While they are generally the same from one state to another, some differences do exist. You would want to talk with a probate attorney who is familiar with the laws in your state to ensure you follow procedures.
Selecting an Administrator for Probate Without a Will
When a will exists, it usually names someone to act as the administrator of the estate. When no will exists, the intestate succession laws will determine who can be named as administrator. This will usually be determined in the first probate court proceeding. The general order for this position is as follows:
- Surviving spouse
- Adult children of the deceased person or grandchildren (adopted children are included)
- Parents of the deceased person
- Siblings of the deceased person
- Grandparents of the deceased person
If none of these family members are living or willing to take on the role of administrator, other family members who are the deceased person’s closest relatives may take the position, beginning with aunts and uncles.
Who Inherits When No Will Exists?
Once a person is named as administrator of an estate, they must handle the tasks that this position requires. The tasks are the same whether a will exists or not and are outlined in the intestate succession laws. These are the first steps for the administrator.
What an Administrator of an Estate Does
One of the first jobs for the administrator is to secure the estate assets. This may mean locating certain assets or physically protecting them by locking them up or making sure they are in a safe place.
The next job is to notify any creditors of the person’s death. All debts must be paid before anyone can inherit even if there is no will. Some states require that you publish a notice in the local newspaper telling of the opening of probate. Creditors will be given a certain amount of time to submit their bills.
The administrator will also need to take inventory of all estate assets. This includes bank accounts, real estate, and personal items, along with other assets that the deceased person had a claim to. If there isn’t enough cash on hand to pay the debts from the bank accounts, they may need to sell certain property, such as real estate or stocks and bonds. They will need to file taxes and pay any taxes owed.
All these tasks must be completed before the estate can be divided up among the heirs. However, the administrator may also have the job of locating any known heirs and telling them of probate during this time.
Dividing Up the Estate
Once all debts have been paid and other obligations completed, the administrator will begin the final task of distributing the estate to the heirs. Without a will, they will need to follow the intestate succession laws to determine who inherits and how much.
Some states allow only spouses of the decedent to inherit all the estate. Other states divide it between the surviving spouse and the children. If there is no surviving spouse and there are two or more children, the estate is generally divided equally. The administrator must follow the state law to determine how to divide up the remaining assets, which starts with the closes blood relatives before more distant relatives inherit.
One exception to distributing an estate among the heirs is if there are any assets that were payable on death and had a named beneficiary. While this most often is the surviving spouse, it can be any relative or nonfamily member. Those assets automatically go to the named person regardless of who they are or how they fit into the line of heirs. Assets commonly assigned payable on death include vehicles, bank accounts, and retirement accounts.
What Happens If There is a Disagreement?
If there is no will, the heirs may argue about who should receive the inheritance. While they may not like the terms, they can’t change the recognized order of distribution unless there is a valid reason. An heir may present what they claim is a will, which changes who inherits. However, the probate court will decide if the will is valid before allowing the estate to be divided.
Heirs may contest a will, but they can only do so on legal grounds. They can’t contest it just because they don’t like the way the process works, or they don’t think the legal heir should receive the inheritance. In this situation, it’s often best to work with a probate lawyer who can help protect the estate.
Once the steps for probate are followed and all assets distributed, probate may be closed. The administrator may be required to provide an accounting statement of where the assets went and receive approval from the court to close the estate. Once this happens, the administrator’s job is done.
Seek Expert Advice When There is No Will for an Estate
While probate is a simple process in theory, it can be quite complicated in reality. If you are an heir or an administrator of an estate, you may want to contact a probate attorney who can help you through the process. They can guide you based on the intestate succession laws for estates without a will.