What Happens With Probate After a Homeowner Dies Without a Will?

By Heather Frances J.D.

Whether or not a person dies having made a will, the decedent’s estate usually must go through some type of probate procedure. When the decedent leaves a valid will, property included in the probate estate will pass to the persons named in the will. When the decedent has failed to make a valid will, state law decides who inherits the property.

Whether or not a person dies having made a will, the decedent’s estate usually must go through some type of probate procedure. When the decedent leaves a valid will, property included in the probate estate will pass to the persons named in the will. When the decedent has failed to make a valid will, state law decides who inherits the property.

Probate

Probate is the court-directed process whereby a decedent’s assets are gathered, the final debts are paid, and the remaining property is distributed to the beneficiaries or heirs. Not all assets are probate assets – those that must go through probate before being distributed. For example, most life insurance policies are not probate assets so they can be paid to the beneficiary outside of the probate procedure. Real estate that is owned by the decedent and someone else as joint tenants with rights of survivorship also avoids probate, so the home will pass directly to the other joint tenant if it is owned this way.

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Intestate Succession

While state laws differ on specifics, all states have laws of intestate succession that dictate what happens to probate assets, including real estate, when a decedent dies without a valid will. These rules apply to estates where a decedent never had a will, as well as estates where the decedent’s will was invalid because it did not comply with state-required formalities such as being witnessed or notarized. Typically, intestate succession laws establish a priority of family members who can inherit estate assets. If no family members exist, the decedent’s property will go to the state under the doctrine of escheat.

Priority

In most states, the surviving spouse will inherit the family home even if she does not receive all of the probate estate. In community property states, much of the decedent’s property may be considered joint property of both spouses so the surviving spouse will automatically inherit one half. Community property is property acquired during the marriage by either spouse, and community property states treat these assets as jointly owned by both spouses. Even in non-community property states, the surviving spouse usually has some priority over other heirs and will often inherit a substantial portion of the decedent’s estate. The decedent’s children typically inherit that portion of the estate that does not go to the surviving spouse. If there is no surviving spouse, the decedent’s children typically will inherit equal shares of the estate.

Inheriting Real Estate

During the probate process, the decedent’s ownership rights in the family home legally pass to the heirs after debts are paid. But the person or persons who inherit the house do not have to keep it. For example, if the decedent’s three children inherit the house, they may choose to keep it as tenants in common -- a form of joint ownership -- or sell it and split the proceeds. The decedent’s death does not erase a mortgage, so if there is a mortgage on the home, it will need to be paid by the heirs, or the house may be sold to pay it.

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Death Without Wills & the Rights of Survivorship for a Property

References

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What Happens to Joint Property When Someone Dies Without a Will in Pennsylvania?

One of the advantages to holding property in joint names is that it may avoid the probate process. In Pennsylvania, estates must pass through probate even when a decedent dies intestate, which means without leaving a will. The probate process moves ownership of a decedent's assets to his heirs or beneficiaries, so it's necessary when no other way exists to effectuate the transfer. When title vests with another individual automatically, as with some types of joint property, probate isn’t necessary. Disposition of the joint property when there is no will is often determined by how title to the property is held.

Estate Settlement & Division of Property From a Will

Estates are settled through probate, which is a process overseen by a local court to ensure that the decedent’s debts are paid and that the remainder of the estate is distributed to the correct beneficiaries. A will may also stipulate that the property should be divided amongst the beneficiaries subject to certain conditions. It is important to note that the probate laws vary by state. If you are an executor of a will, review the laws of the state where probate is taking place.

Does a Quitclaim Deed Pass to the Heirs?

When a person dies, a significant portion of his property passes through the probate process to be divided and distributed among the decedent’s heirs. Traditionally, an heir was a surviving spouse or relative who received property under the state’s intestacy provision. Intestacy only takes effect when there is no valid will. However, the modern definition of an heir includes anyone who receives property from an estate, whether through intestacy or a will bequest. The ownership rights of the heirs, including property that was acquired by the decedent through a quitclaim deed, depends on the circumstances of the transfer.

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