Can an Estate Be Probated Without a Will?

By David Hastings

Probate is the process by which courts distribute the property of someone who has died. An executor is appointed to oversee the deceased's property, known as the "estate." The executor pays off any debts and divides the rest of the estate between the beneficiaries, known as heirs when there is not a will. This is usually done according to the provisions of a will. When there is no will, the estate can still be probated. However, it is different from the traditional probate process. Probate rules vary from state to state, so make sure you are familiar with the rules in your state. If you need help with your state's probate process, consult with an attorney or a legal document service.

Estate Administrator

Most wills appoint someone to be the "executor." This is the person who administers the estate and makes sure the creditors and beneficiaries receive what they should. When there is no will, the court will appoint an administrator instead; some states call the administrator by another name, such as "personal representative." The administrator does the same basic job as an executor, although the rules may vary slightly. The big difference is that state laws determine who the administrator is, rather than the deceased. Most states appoint a relative as administrator if one is available and willing. Usually the deceased's spouse is the first person to be asked. If the court does not find a relative to serve as administrator, it may appoint a third party to serve as administrator.

Who Can Inherit

Each state has laws, known as "intestate succession laws," that determine who inherits if there is no will. In most states, the spouse and children inherit. If the deceased is not survived by a spouse or children, the laws specify other relatives as the heirs. If there are no close relatives, the property goes to the state. Intestate succession laws generally don't provide for close friends, pets, charities or anyone else who is not related to the deceased. The laws are followed strictly, even if the end result is not what the deceased would have wanted.

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Who Gets What

It is common for a will to contain specific gifts to particular people. A man might leave a special book to his son, for example. But without a will, the property is just divided up, even if that means splitting assets, such as a house, between multiple heirs. If necessary, property may be sold and the money divided between heirs, usually evenly. The exception to this is when the deceased is survived by both spouse and children. In many states, the spouse gets half and the children divide the other half, no matter how many children there are.

Time and Costs

In many cases, probate is more costly and time consuming when there is no will. The administrator is one cause of additional costs, because third party administrators will charge the estate for their services. Many states also require an administrator to post a bond from the estate, a requirement that is often waived in a will. Another cause of additional time and cost is that many states have streamlined probate processes and opportunities for tax planning. However, an estate usually cannot take advantage of these opportunities without a will.

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Probate Laws on the Next of Kin

References

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