Jeffrey Johnson is a legal writer with a focus on personal injury. He has worked on personal injury and sovereign immunity litigation in addition to experience in family, estate, and criminal law. He earned a J.D. from the University of Baltimore and has worked in legal offices and non-profits in Maryland, Texas, and North Carolina. He has also earned an MFA in screenwriting from Chapman Univer...

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UPDATED: Dec 16, 2019

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If a person dies without making a will, or intestate, his or her property must go through the probate process in order to have the legal title to the property transferred to their heirs. The probate process is a set of guidelines established by state probate law on how property or assets are to be disposed of when a person dies without a will. The probate process, overseen by a probate court, involves appointing an administrator, identifying heirs, and distributing of assets. 

Preparing the Estate and the Probate Process

Most probate courts will begin the probate process by appointing a personal representative (frequently called an administrator or administratrix) to receive all legal claims against the estate, pay creditors, and manage other expenses owed by the estate. Expenses, paid before distrubution of funds, can stem from a number of areas: from a judgment against the estate, a decedent’s unpaid bills, an outstanding loan, or administrative fees such as court costs and payments owed to the administer for his or her service. Once the administrator pays the expenses of the estate, they will proceed with the probate process.

The next step in the probate process is identifying heirs. The probate laws will determine who is a legal heir. The most easily identifiable heirs include surviving spouses, children, and parents. Close friends not listed as persons entitled to receive gifts under a state’s probate laws cannot inherit when a person dies without a will. Generally, if no heirs can be identified, the probate laws dictate that property of an estate will be defaulted to the state.

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Distributing the Estate

After paying the expenses of the estate and identifying the legal heirs, the probate court will identify what property or assets need to be distributed, and how to distribute them. Even though a person dies without a will, some types of property can be distributed automatically after death. For example, if a bank account is set up as a joint ownership or joint accounts with a right of survivorship, the balance of the account automatically becomes the surviving owner’s property. Similar arrangements can be made for property like land and automobiles. Any property or assets that are not disposed of through a will or right of survivorship will be disposed of by the probate court according to the state’s probate laws. 

The rules for determining how much each heir is entitled to receive from an intestate estate vary from state to state. Subtle differences between the rules of different states can have a substantial effect on who inherits when a person dies without a will. Most states’ probate law divides property among a surviving spouse and the children of the deceased. For example, California probate laws provide that if married, the spouse gets 100 percent of the property the two shared, but only one-third or one-half of the separate property left as children or parents of the deceased can share in the distribution of non-marital property. If a person is un-married (this includes widows and widowers) and dies without a will, the property is distributed by the priorities listed in the California probate code. If no next of kin can be located, the property or assets will default to the State of California. The rules for intestate estates are very technical and are usually strictly followed.

Getting Legal Help

Probate laws will serve as a substitute to distribute an estate in the absence of a will, however, a probate court will simply distribute the estate according to the letter of the probate law and not in accordance with any wishes the deceased may have articulated prior to their death. In order to ensure your last wishes are honored, you should visit with an attorney that specializes in estate planning to properly draft a will. In addition to a will, they can help you develop other strategies for ensuring that you property goes to the right person after your death. Effective estate planning can also reduce probate expenses. Probating an estate without a will is considerably more expensive than probating an estate with a will, and the cost of that will be taken out of the property the heirs would have inherited. Consult with an estate planning attorney if you’re not certain about how to best dispose of your estate after death.