How to Get an Estate Probated if There Is No Will

Forbes.com reports that two-thirds of Americans have not written a last will and testament. If you’re one of them, it doesn’t mean that your estate won’t go to your heirs. It means that your assets might not go to those you’d like to receive them if those people aren't closely related to you. Your estate will still go through probate, but the court will decide who gets what.

Go to the courthouse in the county where the deceased lived when he died. Speak with the probate court clerk and ask for a petition to open probate. Explain that the deceased did not leave a will. You don't need one to open probate, but you do need to file the petition to begin probating the deceased's assets and debts.

Attend an initial court hearing. The court will notify you of the date and time after your file your petition for probate with the clerk. At the hearing, the judge will confirm that there’s no will and appoint an administrator to oversee the probate process. An administrator is the same as an executor, and has many of the same duties. In most states, the judge will appoint the surviving spouse. If you’re the surviving spouse and you don’t want the job, it will generally pass to your adult children, or if you don’t have any, to your adult grandchildren, then to your spouse's parents or siblings.

Take an oath of office and accept documentation from the court allowing you to act on behalf of the estate. In some states, this will occur at the initial hearing. In others, you might have to return to the court at a later date.

Begin the process of administering the estate. Initially, this is the same as if you had a will to probate. Document the deceased’s assets. If you’re not sure of the value of some of them, have them appraised. Notify the deceased’s creditors that he has died and instruct them to send you claims for payment. The amount of time they have to do this varies from state to state. Determine what taxes the deceased owes and file returns.

Distribute the estate’s assets to the deceased's heirs according to the laws of your state. The major difference between dying with a will and dying without one is that the deceased doesn’t get to say which of his heirs get his assets. The court awards them in an order of succession, usually beginning with his surviving spouse and his children, then to parents, brothers, sisters and more distant family members. If he has no living relatives at all, his assets might go to the state.

Tips

  • If the deceased left children, and if you’re not the surviving spouse and their other parent, the court will also name a guardian for the children. This usually occurs at the time the judge confirms that there is no will and names an administrator, but the guardian might be temporary until probate is completed and closed and a final decision is made. If the deceased’s children’s other parent is alive, custody would generally be awarded to her, unless she’s proved unfit.

References

About the Author

Beverly Bird has been writing professionally for over 30 years. She is also a paralegal, specializing in areas of personal finance, bankruptcy and estate law. She writes as the tax expert for The Balance.