What Do I Need to Probate an Estate Without a Will?

It is hard to know what to do when a loved one passes away, especially when they pass without a will. There are many formal requirements that must be fulfilled to take care of a relative’s final affairs. When there is a valid will, many of these requirements have already been stipulated or organized by the decedent. However, some of these requirements may be unclear when there is not a valid will in place. This article aims to provide some direction on what is needed to probate an estate when someone dies without a will.

First, probate is a formal process that a court uses to determine how a decedent’s assets will be distributed and who they will be distributed to. Each state has their own probate laws that outline this process. Typically, when a valid will is in place, the court will follow the instructions laid out in the will. However, when the decedent dies intestate, meaning they die without a will, the court relies on their state’s intestate succession laws to distribute the estate. 

While probate and intestate succession laws vary from state to state, the steps required to probate an intestate estate are generally similar. Typically, the first step in this process is to apply to be the administrator of the estate. An administrator is appointed by the court and is tasked with performing various duties so that the court can probate the estate. Generally, this application must be completed within four years of the decedent’s death. This process differs from situations where a valid will is in place because it is likely that the decedent has already appointed an executor. An executor and an administrator of a will have similar duties even if they are appointed in different ways.

To apply to be an administrator, you must file a petition with the court, and you must have some claim to the estate you are seeking to administer. Each state has laws to determine who can serve as an administrator and the order of priority that those individuals will be appointed as an administrator by the court. For example, in many states, a surviving spouse will be appointed the administrator before any other relatives. However, another way to become an administrator of an estate is through a written agreement between those who also have a claim to the estate. 

Once appointed as an administrator, it then becomes necessary to locate the decedent’s assets. Sometimes this step can prove difficult because some decedents have assets that were kept secret from other family members. Regardless of the difficulty in locating a particular asset, the administrator likely must take possession of the asset. One exception to this rule is real property. The administrator is not required to take possession or move into the real property; however, they must make sure the property is safe and that the appropriate taxes are paid.

After the decedent’s assets have been located, an administrator should then calculate the value of those assets. This can be done through an appraiser. The purpose of appraising the assets is to create a list, which will be given to the probate court, of all the decedent’s assets and their estimated value. 

The administrator should also contact the decedent’s creditors and inform them of the decedent’s death. The administrator is charged with paying the decedent’s remaining debts to those creditors. In addition to debts, the decedent’s taxes should also be paid by the administrator. 

Finally, once all the above duties have been completed, the court will be able to distribute the estate. When a decedent dies intestate, the estate will be distributed according to that particular state’s intestate succession laws. These laws determine who can inherit the estate and the order of priority that each heir can inherit the estate. The probate process is concluded when the estate is administered, final debts are paid, and assets are transferred. 

Navigating the probate process can be difficult and costly. Additionally, processing the death of a loved one while handling their affairs can be overwhelming. An experienced attorney may be able to provide assistance and guidance to alleviate the stress of this process.

If you have questions about estate planning, contact an estate planning lawyer , like the attorneys at the Brandy Austin Law Firm for help with your case. 


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