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.


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.

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.

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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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If Your Spouse Dies With a Will, Does It Need to Be Probated?

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