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Unfortunately, at the moment a loved one dies, grief is not the only thing to deal with, since there are plenty of legal matters that require being taken care of.
One of such matters is how the decedent’s property and belongings – known as estate as a whole – will be distributed, involving a probate.
Now, what does occur with a probate with no will? How are the estate’s assets distributed if there is not a will to follow? In this case, the probate process is addressed differently, acquiring other legal characteristics that vary depending on jurisdiction and many more aspects.
Let’s find them out.
What happens with probate when there is no will: Things to know
Before getting to know exactly how probate proceeds when the deceased does not leave a will, we must know first what this legal process is all about and why the fact of not counting with an estate planning tool like a will is relevant.
In more depth, a probate is the legal and mandatory procedure of validating, administering, inventorying and ultimately transferring the decedent’s estate to surviving relatives and rightful heirs.
For this to happen, a series of steps must be taken care of on behalf of an executor – or administrator for probates with no will – first.
Also, the probate court – as court-supervised process – plays a huge part by handling beneficiary notifications, hearings, tax and fee payments respecting estate´s assets and their corresponding retitling among creditors.
Sure, these steps seem relatively simple and doable overtime, so why should you be worried? The thing is, probating an estate with a will is not the same as doing it without one, since a will – while it would not avoid probate entirely in most cases – allows following a more streamlined process.
In their lifetime, a decedent that leaves a will behind makes things easier, starting from designating an executor and beneficiaries to establish estate´s assets in a clearer way. Usually, matters in terms of taxes are also calculated and covered.
As a result, a probate that is backed up by a will is possible to conclude faster, with less expenses and paperwork.
This must not be confused: a will must be probated mandatorily, at least estate assets that apply, which can vary among jurisdiction and other aspects.
How does probate court work with no will? Process and steps
Probate courts address cases involving a will or not in a different way, starting from the terminology.
To begin with, when a person dies without a will it is referred to as “intestate”, and this is important for one reason; the process falls into the state´s intestacy succession laws. In other words, it becomes an intestate succession case, in which, laws vary depending on jurisdiction.
According to these state laws, the intestate estate will be addressed by the probate court in each of the steps: executor designation, heirs’ identification and notification, tax and debt payment, estate evaluation and ownership, and finally estate´s assets distribution.
a. Administrator or personal representative designation
When a probate request is issued to the court, the process starts by designating an administrator.
Also known as a personal representative, this person will play the role of the executor in the hypothetical case a will would exist.
Among the functions, generally speaking the administrator is responsible for filing paperwork on the probate case, notifying and locating heirs, as well as being sure of paying bills and taxes to the state and distributing estate´s assets properly.
Frequently, the administrator is entitled to inherit some portion of the asset and close decedent´s relatives.
So, the probate court can appoint the personal representative, he or she must comply with certain characteristics given by the state´s law.
According to the state´s intestacy succession laws that apply depending on the jurisdiction where you live in, the probate court has the power of determining heirs, in terms of order and asset distribution. Every state has a different class of heirs where these conditions are described.
The good news is, these classes are usually common among states and describe a similar order of inheritance right, which is; spouse, children, living parents and remaining siblings. More distant relatives like uncles, aunt and cousins can inherit in case there is no other closer family member.
c. Asset collection and debt and tax payments
For the probate court to continue with the case and reach estate distribution, it will demand an asset collection or list prepared and documented by the administrator. Such a list must include possessions and properties of the deceased.
The list must include: bank accounts, vehicles, real estate, life insurance policies and other types of liquidity and belongings. With the list, it is possible to determine the gross value of the estate. In the same way, debts must also be listed.
Having this information at hand allows the probate court to request debt payments related to the estate, along with pending and current taxes to be charged. Only when the entire debt and taxes are paid the estate´s distribution will proceed.
d. Asset distribution among beneficiaries
With debts and taxes paid, the remaining step is the corresponding distribution of the estate’s assets among the beneficiaries and relatives, as the corresponding intestacy succession law demands depending on the jurisdiction.
Usually, this last step is carried out by the probate court holding a hearing on asset distribution and accounting. Eventually, a discharge order will also be issued by the court so the case can be closed.
Who can apply for probate with no will?
With a will, the executor of the probate case is designated in lifetime by the testator, so he or she is the only with the entitled power of applying for a grant of probate.
However, in case the appointed executor has passed away or refuses to take the position, the probate court can designate an administrator.
In the case of probate without a will, requesting a grant of probate – in the intestate cases known as letter of administration – can only be issued by the main heir.
Usually, the decedent’s spouse is the one entitled by the probate court to act as administrator, but children, parents and siblings can take this place, if necessary, in the case other members have died or cannot take the position.
How long does probate take without a will?
The time that takes a probate case depends on many different factors. What is certain is that probating the estate’s assets and beneficiaries with a related will is almost every opportunity a quicker, or at least streamlined process.
Aspects that make probate cases last months or even years depend on:
- Size of the estate: a bigger estate takes longer to validate, process and ultimately distribute.
- Type of estate: estate’s assets play a huge role in how long the probate is going to take, considering related taxes and debts, such as mortgages for real estate.
- Jurisdiction: subject to jurisdiction, rules of intestacy may involve different and longer processes, varying from state to state.
- Estate´s current situation: estate can involve different ownership, taxes and debt that are possible to extend the process.
- Contesting status of the probate: with a will or not, contesting a probate case means it will take longer to settle, in order to study the contest and evaluate its validity.
Why do some wills not go to probate?
In some cases, wills do not have to undergo probate due to the rules of intestacy, subject to jurisdiction and address from type of estate’s assets to the amount of them, as well as total gross sum.
Wills that skip probate usually include:
- Property held in joint names like community property or property under survivorship clauses.
- Property with designated beneficiaries.
- Assets kept in a living trust.
- Avoiding probate entirely due to small estate, which threshold is subject to jurisdiction. In Washington D.C. such threshold is lower than other states, reaching $40.000.
Probate Attorney in Washington D.C.
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