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How does probate without a will work? - Avvo

Choosing the estate's personal representative

A decedent's will usually names an estate's executor. Without a will, a personal representative performs the same functions as an executor.

In some states, people must nominate themselves to become the estate's personal representative. They will need to approach a court to be officially appointed as the personal representative of the decedent's estate. Other relatives can appear in court to challenge this appointment.

In other states, the law decides who can become court-appointed personal representatives. The decedent's spouse or partner is usually the first choice, followed by any adult children and any other living relatives. Courts will make every effort to ensure the personal representative has the time, skills, and character to handle probate without a will.

Partnering with an attorney in estate administration

Personal representatives may benefit from partnering with a lawyer who handles estate administration. The representative usually won't face any personal cost for getting help. According to Maryland attorney William Oakley, "Estate attorneys are typically paid their fees out of the estate assets based upon a percentage formula set forth in the statute governing estate administration."

The probate process without a will

If a person dies without a will and no one can serve as the personal representative, a creditor may open the estate to recover payments owed. If the court cannot find any heirs, any assets become the state's property.

If a person becomes the personal representative, this person takes responsibility for repaying the decedent's debts and distributing the assets according to state guidelines. If you're a personal representative, you'll need to take the following steps to settle the decedent's estate:

  1. Give written notice to all creditors of the decedent's passing
  2. Write a list of all the estate's assets, including property, stocks, and business interests
  3. In some states, hire an appraiser to value assets or give access to a court-appointed appraiser
  4. In some states, buy a surety bond
  5. Receive and assess creditor claims
  6. Pay legitimate creditor claims and other final estate bills, such as funeral expenses, taxes, and liens
  7. Sell estate assets to pay estate debts, permitted or required
  8. Petition court for authority to distribute remaining assets according to state intestate succession laws
  9. Transfer estate assets to necessary parties

Distribution of assets and inheritance

In the absence of a will, the decedent's assets are divided according to the state's intestate succession laws.

Typically, the following people receive entitlements to inherit under intestate succession laws:

  • Spouses
  • Registered domestic partners
  • Blood relatives

The following parties are ineligible to inherit assets from the decedent's estate:

  • Unmarried or unregistered partners
  • Friends
  • Charity groups
  • Anyone who has harmed the decedent, such as someone who caused the decedent's death, or a parent who abandoned the decedent

The married spouse usually gets the greatest share of the estate. If children are not involved, the spouse usually receives all assets. More distant relatives usually inherit only if no surviving spouses or children exist.

This process is more complicated if the decedent owns property in different states. Houston probate attorney Stephen A. Mendel explains "With every state having different inheritance laws, this could mean several different sets of heirs inheriting your property, leading to a process that's not only expensive and time-consuming, but incredibly confusing as well."

Nonetheless, with a responsible personal representative in place, the probate process can still run smoothly even if the decedent has not left a will.

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