People sometimes mistakenly believe that they can avoid probate if there's no will. Unfortunately, that generally isn't true. A person can die either intestate (without a will) or testate (with a valid will). If a person passes away intestate, the property will be distributed according to the state's intestate succession laws. Then, how is the probate process without a will different than the one with a valid will? Read on to learn about the probate process without a will.
Probate for Intestate Succession
The probate process is supervised by a probate court that has jurisdiction over the estate at issue. The court will hold hearings on petition for probate and determine how to distribute the assets. If there's a valid will, the probate process will proceed as a testate estate. However, if there's no will or if a will is found to be invalid, the probate will proceed as an intestate estate. Every state has its own laws on intestate succession, which refers to the process of transferring property or property interests to the appropriate heirs when there is no valid will.
Appointing a Personal Representative
If there's an existing will, it usually names an executor, who manages the estate affairs after the testator's death. However, when there's no will, the probate court will appoint a person to manage the probate process. The probate process for an intestate estate begins by appointing a personal representative (also called an administrator). The personal representative appointed by the court has the same responsibilities and duties as an executor named in a will. The personal representative has to determine the value of the estate, collect probate assets, handle any legal disputes and claims against the estate, pay debts and taxes, and manage other expenses owed by the estate.
Identifying the Heirs When There's No Will
State laws on intestate succession will determine who gets the property when there's no will. There are usually classes of heirs, which determine the order of distribution and the share of the estate. The most common and easily identifiable heirs are surviving spouses, children, parents, and any blood relatives. The closer relatives (usually a surviving spouse and the decedent's children) will inherit the property rather than distant relatives. Distant relatives will take the assets only if there are no surviving spouse and children. Friends and charities do not receive anything under intestate succession. If there are no surviving family members, most states will make the entire estate go to the state.
Distributing the Estate Assets
After appointing a personal representative and identifying the heirs, the probate court will determine what assets to distribute and how to distribute them. The laws on how to distribute the estate assets vary greatly by state and by the type of property. Some types of property will be transferred to someone else without probate upon the decedent's death. For example, the decedent's portion of a joint property with right of survivorship will automatically go to the surviving joint owner.
In most cases, distribution of the remaining assets will be shared among a surviving spouse and the decedent's children. Or, as mentioned above, distant relatives will take the assets if there are no surviving spouse, children, and parents. The probate court will hold a hearing on petition for final distribution and accounting. Upon the court's approval of final distribution, the heirs will receive the assets.
Concluding the Probate Process
The probate court will finalize the process by issuing an order approving the final distribution and accounting. After making final distribution of any remaining assets, the court will issue a final discharge order. After that, the probate process comes to an end and the case is closed.
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Depending on the case, the probate process can take years, or even decades. Understanding state laws on intestate succession can be difficult because there are several steps involved in the probate process. Moreover, probate can be more costly and time-consuming when there's no will. If you have any issues or questions about probate or estate planning, contact a probate lawyer in your area and get a free case review.