How Does Probate Work When There is No Will?

Losing someone can be a difficult time for anyone. It is especially true when those who have been left behind need to settle the person’s properties. This task will most likely require going to a probate court and hiring a probate lawyer.

Some people regard probate as being complicated and expensive. However, with the help of an expert probate lawyer, going through probate without a will can be easier.

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How to Start Probate without a Will

When a person dies without a will yet has properties in his possession or ownership, somebody should take care of closing out their estate. Any person may serve as the administrator if they want to start probate without a will.

The first thing to do is to file a petition in probate court. It is ideal to get a probate lawyer to guide through the process. Below are the steps on how one can start the process:

  1. Go over the deceased person’s assets and check if the estate qualifies for a small estate probate exemption. They will have to determine and establish the estate’s value. They will also have to produce a list of all the property that will be distributed.
  2. Check the county where the probate proceeding will be filed. In most cases, this happens in the county where the deceased person lived. Did the deceased own a home? If the answer is yes, then the proceeding should take place in the county where the house is.
  3. Prepare a certified copy of the death certificate. Bring this to the courthouse and request forms for a Petition for Letters of Administration. Filing this means that they are asking the court to act as the personal representative of the estate.
  4. Accomplish the form requesting administration and file it in the appropriate office. Make sure that all the names and addresses of living relatives of the deceased are available. They should be prepared to give this information when requested.
  5. They will be mandated to inform everyone that they are petitioning for probate. It entails publishing a notice in the local newspaper. Another approach is possible so long as it will be able to inform people that a Notice of Petition to Administer Estate has been filed. Notices should be sent to the homes of family members. It will also serve as a notice to all creditors so they can file their claims against the estate. They usually have four months to send in their claims.
  6. The final step happens when the petition is granted, unless, of course, another more suitable representative comes forward.

The Advantages of Probation without a Will

Do you own a home and other properties? Do you have items that have sentimental value? Do you have rare pieces of art or valuable materials? Look around your home and think about what will happen to your valuables when you’re gone. This might sound upsetting, but this should be something you have to think about. Death can be a sudden thing, and leaving this world without a will can be problematic.

In these instances, a probate court will be the one who will give the final decision. They will provide the answers to any legal questions should you die without a will. Below are the advantages of probation without a will:

  • Shortens period for creditors to file claims.

The last thing you want to think about when you or someone you love dies are calls from debt collectors. When you start probate, this can reduce the time that creditors have to file for claims. It can be as short as only three months. Consult with a probate lawyer so you can find out the laws of your state on this.

  • Settles claims to property.

The issue of inheritance, especially if it involves property, may become ugly. In general, your heirs can include the following:

  • Your surviving spouse
  • Siblings
  • Aunts and uncles
  • Nieces
  • Nephews
  • Distant relatives

With this number of people, claims to property can become complicated. Keep in mind that probate will not guarantee that your heirs won’t go to court regarding disputes over property. However, intestate succession laws put in by the court in relation to distribution of property may address some disputes.

It’s best to remember that state law will determine the order of who takes first in intestacy. In case no relatives can be traced, the estate will automatically go to the state.

  • Transfers title.

Real property usually needs to go through probate in order to transfer the name on the title. That may not be required if the property is held in trust or is part of a joint ownership. Consult with a probate lawyer regarding properties held in trust or co-owned.

The Disadvantages of Probation without a Will

If you leave your loved ones without a valid will, this may become complicated for them. Below are just some of the disadvantages of probation without a will:

  • Your intestate heirs may not receive your property.

This is one of the major drawbacks of not having a valid will. In some cases, the probate court may have to determine who will be considered as your legal heirs. They may also decide which among the heirs should receive your properties. If you have specific instructions for specific people and you don’t have a will, your request will not be followed.

  • Probate is time-consuming.

You may encounter delays when it comes to transferring your assets to your beneficiaries. The probate process completion time usually takes about six months to two years. This means that during this time, your valuables and assets are tied up.

If you have a family that urgently needs it, they may have trouble getting access immediately. That is why it’s essential to get a probate lawyer and draft a will as early as possible.

  • Privacy can be a concern.

If your will is offered on probate, it will automatically become public record. Thus, anyone who has an interest in this specific detail of your life may gain access to it. Those you may have left behind may be put in a difficult situation because of this.

What’s the Role of the Court?

In every state court, there is typically a specific probate division that’s commonly known as probate court. Its main task is to take on the process of lawfully resolving debts, taxes, and other financial affairs of those who have died. The probate court also makes sure that the remaining properties and assets go to the lawful recipients.

When someone dies without a will, the court will decide who will be the estate administrator. Most of the time, it is the surviving spouse who is selected.

In case the spouse declines or if there is no spouse at all, the court will then look for the next nearest relative and assign them as administrator. The situation gets complicated when families are spread out across the country. That’s because some states have residency requirements when it comes to selecting administrators. A good probate lawyer should be able to discuss these details with you.


Written by Erin Porteous

For the past ten years Erin Porteous enjoyed the freedom of being an independent purveyor of creative services. I specialize in crafting and producing scripts for radio and TV commercials for businesses of all sizes. Moving into the web past 2 years I've been part of LR family driven by a passion for finding simple solutions to complex problems.

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