Probate Without a Will
When someone dies without a valid will, the law treats the situation as intestacy. Probate still takes place, but the court must follow state law to determine who inherits because there are no legally recognized instructions from the decedent. Each state has an intestate succession statute that functions as a default inheritance plan. These statutes list heirs in a fixed order, like a spouse, children, parents, siblings, and then more distant relatives. Every probate asset must be distributed according to that list, even if the outcome conflicts with what the deceased may have verbally expressed or what the family believes is fair. Since there is no executor named in a will, the court appoints an administrator to gather assets, notify creditors, pay valid debts and taxes, and distribute what remains. The administrator performs procedural tasks only; they do not determine who receives the estate.
This framework often leads to results that feel unexpected. Unmarried partners, stepchildren, long-time companions, and close friends usually inherit nothing under intestacy. At the same time, relatives who had little or no relationship with the deceased may receive the entire probate estate. The court cannot adjust the distribution based on personal circumstances or fairness. Understanding how intestate probate works helps families anticipate what lies ahead and reduces confusion during a difficult time. It also reinforces an important point: without a valid estate plan, state law takes complete control of the distribution of assets, often producing outcomes the decedent never intended.
Avoid unnecessary attorney hours by preparing fully compliant probate documents using legally adherent templates. Meet court requirements and improve accuracy with RunSensible Forms
Intestate Succession & Asset Categories Legal Framework
When a person dies without a valid will, the distribution of their estate is governed entirely by state intestacy laws. These rules dictate who inherits, in what order, and under what conditions. Understanding how these statutes operate, as well as how non-probate assets are treated, is essential for anyone navigating an intestate estate.
State Determination and Distribution Rules
Intestate estates are controlled by the laws of the state where the individual was domiciled at the time of death and, in some situations, by the state where the property is located. Probate courts apply these statutes exactly as written, regardless of family expectations or informal statements made by the deceased. Every state has enacted its own intestacy code, which serves as the default mechanism for distributing assets when no will exists.
Heir Priority and Inheritance Hierarchy
Intestate succession laws establish a statutory order of heirs, and although details differ by state, the structure is broadly similar. The surviving spouse and biological or adopted children generally receive priority. When both are present, many states divide the estate between them rather than granting everything to the spouse. In California, for example, a surviving spouse receives all community property and one-third of separate property when the deceased leaves two or more children, with the children sharing the remaining portion equally.
If there is no spouse or children, parents inherit next and typically share equally. When parents are not living, siblings and the descendants of predeceased siblings inherit through representation. If no immediate relatives exist, inheritance proceeds to more distant family members such as grandparents, aunts, uncles, cousins, and other collateral heirs. Only when no heirs can be located after a statutory waiting period does the estate pass to the state.
Non-Probate Transfers and Beneficiary-Directed Assets
Certain assets bypass probate entirely and are not distributed under intestacy statutes. Life insurance policies, retirement accounts, and similar financial assets transfer directly to named beneficiaries. If no beneficiary is designated, those assets revert to the probate estate and follow intestacy rules. Payable-on-death and transfer-on-death designations on financial accounts function similarly, transferring funds automatically to the named recipient. Joint tenancy with right of survivorship also allows property to pass immediately to the surviving co-owner without court involvement.
Trust-Controlled Property
Assets placed in a revocable living trust are governed by the terms of the trust document, not by probate or intestacy laws. The trustee is responsible for carrying out the trust’s instructions and distributing property to the named beneficiaries, which keeps the assets entirely outside the probate process.
Planning Implications and Practical Impact
Non-probate transfers play a significant role in shaping the final distribution of an intestate estate. Even without a will, properly executed beneficiary designations or trust arrangements can ensure that certain assets pass to specific individuals rather than according to the statutory order of heirs. This process highlights why asset titling and beneficiary planning are critical components of a sound estate strategy.
How Probate Works Without a Will: Clear Steps, Timelines, and What to Expect”
When someone dies without a valid will, the probate process still moves forward under strict court supervision. The purpose is to identify heirs, safeguard assets, pay debts, and distribute property based on state intestacy laws. The steps below outline how an intestate estate is administered from start to finish.
Step 1: Filing the Petition and Opening the Estate
The process begins when an interested party—usually a spouse, adult child, or parent—files a Petition for Letters of Administration in the probate court of the county where the deceased was domiciled. Jurisdiction is always tied to the decedent’s legal residence.
The petition typically includes:
- The decedent’s name, date of death, and residence
- A list of all surviving heirs with addresses
- A certified death certificate
- Required court filing fees
Some states also require initial disclosures, such as a list of known assets or liabilities. Once filed, this petition formally opens the probate case and brings the estate under court oversight.
Step 2: Appointment of the Administrator (Personal Representative)
After reviewing the petition, the court appoints an Administrator—also called the Personal Representative—to manage the estate. Selection follows a statutory priority order, such as:
- Surviving spouse
- Adult children
- Parents
- Siblings
- Other relatives
If multiple individuals share equal priority, the court chooses based on capability, willingness, and lack of conflicts.
Once appointed, the Administrator:
- Takes an oath to uphold fiduciary duties
- Receives Letters of Administration, the official document granting legal authority
- May be preceded by a temporary Special Administrator if immediate action is needed to protect assets
These Letters authorize the Administrator to collect assets, sign documents, manage finances, and ultimately distribute the estate.
Step 3: Providing Notice to Creditors and Heirs
The Administrator must notify all heirs-at-law and known creditors in writing within the timeframe required by state law. This ensures transparency and protects the rights of those entitled to inherit or collect debts.
The Mandatory Creditor Claim Period
Every state requires a formal creditor window during which claims must be submitted. The length varies:
- California: Later of 4 months from issuance of Letters or 60 days from mailed notice
- Other states (e.g., Missouri, Arkansas): 6 months from first newspaper publication
Additional requirements typically include:
- Publishing a notice to creditors in a local newspaper within a set number of days
- Sending a mailed notice to known creditors, such as lenders, credit card companies, and medical providers
After the claim period expires, new creditor claims are barred by law.
Step 4: Inventory, Appraisal, and Debt Settlement
The Administrator must identify, document, and value all probate assets. This formal Inventory and Appraisal is usually due within two to four months after appointment.
Typical assets listed include:
- Real estate, vehicles, bank accounts, investments
- Personal property (furniture, jewelry, collectibles)
- Business interests or outstanding receivables
Assets must be valued at fair market value as of the date of death, often requiring licensed appraisers for real estate or high-value items.
Once values are established, the Administrator uses estate funds to pay:
- Funeral costs and administrative expenses
- State or federal taxes owed
- Valid creditor claims submitted on time
- Other legally enforceable obligations
Invalid or untimely claims can be rejected, and the court is notified through a Return of Claims.
Step 5: Final Accounting, Distribution, and Closing the Estate
After debts, taxes, and expenses are fully resolved, the Administrator prepares a comprehensive Final Accounting. This document details:
- All assets received
- All payments made
- Remaining property available for distribution
The court reviews the accounting for accuracy and compliance with state law. Once approved, the Administrator distributes the remaining assets strictly according to the intestate succession statute.
Examples:
- A spouse and two children may divide the estate according to a statutory formula
- A spouse may receive all community property, but only part of the separate property
- Without a spouse or descendants, the estate passes to parents, siblings, or more distant kin
Finally, the court issues a Discharge Order or Judgment of Final Distribution, closing the estate and releasing the Administrator from further responsibility. An Affidavit of Closing is often filed within 30 days to formally complete the process.
Whether you need creditor notices, inventory schedules, accounting templates, or final distribution forms, RunSensible Forms provides clear, ready‑to‑use legal documents for every probate stage.
Required Forms & Documents for Intestate Probate
When someone dies without a will, settling the estate requires filing a series of formal, court‑approved documents. Below are the common forms (though exact names vary by state) typically needed to open and administer an intestate estate, plus explanations of their purpose.
Key Forms and Their Purpose
- Petition for Letters of Administration — This is the document that officially starts the probate process for an intestate estate. It asks the probate court to appoint an Administrator (Personal Representative) to manage the estate. The petition usually includes the decedent’s basic information (name, date of death, residence), list of potential heirs, and a request for the court to issue Letters of Administration once qualified.
- Oath of Personal Representative (or Fiduciary Oath) — After appointment, the Administrator must swear (or affirm) to uphold fiduciary duties and manage the estate in compliance with the law. This oath is often bundled with the Letters of Administration.
- Notice to Creditors / Notice of Administration — Required to notify known creditors and sometimes to trigger a public “creditor‑claim period.” It ensures that creditors have a chance to present valid claims against the estate before distributions are made.
- Inventory and Appraisal (Estate Inventory) — The Administrator must compile a detailed inventory of the probate estate: all assets owned solely by the decedent (real estate, bank accounts, securities, personal property, etc.), as well as liabilities and debts. The probate court often requires filing this inventory within a set timeframe.
- Waiver or Renunciation of Right to Administer — If someone with higher statutory priority declines to serve as Administrator (e.g., a surviving spouse), they can formally waive or renounce that right, allowing the court to appoint the next eligible person. This document clarifies who will serve.
- First and Final Account & Petition for Distribution (Final Accounting) — Before distributing the estate, the Administrator must file a complete accounting: all assets collected, debts paid, expenses, and remaining balances — essentially a ledger of the estate’s transactions — and petition the court to approve distribution to heirs per intestacy laws.
Notes and Variations
- Because probate laws differ by state, form names and exact requirements vary. For example, in one jurisdiction, the “Petition” might be called “Application for Administration,” or the “Inventory” might require a detailed appraisal by a licensed appraiser, depending on asset type. Courts sometimes provide official “Probate Packets” with standardized forms.
- In some states or under certain thresholds, there may be simplified or alternative probate procedures (e.g., “small estate affidavits” or summary administration) instead of the whole formal process, making some of these forms unnecessary.
- Even when a will exists, many of the same procedural documents are required — the only difference is that the estate is handled under the will, and “Letters Testamentary” are issued instead of Letters of Administration.
Sample Probate‑Documents Checklist
Before (or shortly after) filing with the court, ensure you gather and prepare the following — this helps avoid delays and omissions:
- Certified death certificate of the decedent
- Petition for Letters of Administration (completed and signed)
- Oath of Personal Representative / Fiduciary Oath
- List of all known heirs (names, addresses, relationships)
- Notice to Creditors / Notice of Administration (for known and unknown creditors)
- Inventory and Appraisal of all probate assets (with valuations as of date of death)
- Waiver or Renunciation forms (if any eligible heir declines to serve)
- Creditor claim forms (if required by state)
- First and Final Account & Petition for Distribution (to be prepared later – after debts are settled)
- Copies of any trusts, beneficiary designations, or non‑probate documents (to confirm which assets bypass probate)
- Estate‑specific documents (deeds, titles, financial account statements, business interests, etc.)
Get instant access to drafted Petitions for Letters of Administration, Administrator Oath, and other required court documents at RunSensible Forms.
Costs, Fees, and Taxes in Intestate Probate
Probating an estate also comes with financial obligations that must be paid before heirs receive any inheritance. Understanding these costs helps families plan realistically and avoid surprises and monetary losses during the probate timeline.
Court Costs and Mandatory Filing Fees
Every intestate probate case begins with required court fees, which vary widely by state and county.
Typical court‑related expenses include:
- Initial filing fees: For example, Massachusetts charges $375 + $15 for a formal petition, while Nevada probate filings usually fall between $270–$320 depending on the county.
- Certified document fees: Courts and vital records offices charge per‑page or per‑certificate fees for items such as death certificates and court orders.
- Publication fees: Courts require public notice to creditors in a local newspaper, which usually costs $100–$300 depending on the publication.
- Appraisal fees: Professional valuations—especially for real estate, art, jewelry, and collectibles—may range from a few hundred to several thousand dollars.
These costs are always paid from the estate’s funds, not from the Administrator’s personal finances.
Attorney Fees in Intestate Probate
Because intestacy cases are governed by strict statutes, most Administrators hire an attorney to navigate the requirements. Attorney fees also come from estate assets.
Common fee structures include:
- Hourly Rates: Often used in California and other large states. Rates typically range from $150 to $350+ per hour, with average rates around $330/hour. Complex estates can require extensive hours.
- Flat Fees: Some attorneys charge a fixed amount for the entire probate process (e.g., $3,500+ in Washington for estates over $100,000).
- Percentage‑Based Fees: States like California allow attorneys to charge a statutory percentage of the estate’s value—often 3% to 6% of the first portion of the estate, with reduced percentages for higher asset tiers.
Families should request written fee quotes and may negotiate caps on hourly billing for predictability.
Administrator (Personal Representative) Compensation
The Administrator is legally entitled to be paid for their work. Compensation is usually based on a state‑mandated percentage of the estate’s value, though courts can adjust the fee depending on:
- The estate’s complexity
- The amount of time and labor involved
- Any financial or administrative challenges faced
Whether the Administrator is a family member or a professional fiduciary, their fee is a legitimate estate expense that reduces the final distribution.
Estate Taxes: Federal and State Requirements
Probate costs don’t end with court and attorney fees. Taxes may also apply—regardless of whether the decedent left a will.
Federal Estate Tax
The federal estate tax applies only to estates exceeding the federal exclusion amount (which changes annually). Most estates fall below the threshold, but those that exceed it may owe 40% tax on the amount above the exemption.
The tax is calculated using:
- Total probate + non‑probate assets
- Deductible expenses
- Applicable federal exclusions
State Estate and Inheritance Taxes
Some states impose their own taxes, separate from federal rules.
Currently, five states impose an inheritance tax:
Kentucky, Maryland, Nebraska, New Jersey, and Pennsylvania.
Inheritance taxes vary by:
- State
- Heir’s relationship to the deceased
- Value of inheritance
Examples include:
- Maryland: 10% inheritance tax on certain heirs; many close relatives are exempt.
- Nebraska: Rates range from 1% to 15%, with closer relatives paying less.
- New Jersey: Classes of beneficiaries are taxed at 11% to 16%, depending on their relationship and the state’s classification.
Some states also impose a state estate tax, assessed on the estate as a whole rather than individual inheritances, for more information visit ABA Federal and State Requirements.
Tax Filing and Compliance Obligations
The Administrator is responsible for completing and filing:
- Federal estate tax returns (if applicable)
- State inheritance or estate tax filings
- Final income tax returns for the decedent
- Any required fiduciary income tax returns for the estate
These taxes must be paid before assets can be distributed. Unpaid taxes can result in:
- State liens
- Accruing interest
- Penalties
- Delays in closing probate
Final Thoughts
Losing a family member is emotionally heavy and brings about legal responsibilities that many families are unprepared for, and forces them to navigate a rigid, court‑driven process that rarely reflects the decedent’s actual wishes. Intestate probate follows strict statutory rules, which can delay distribution, increase administrative costs, and create stress at an already difficult time. As many legal commentators observe, probate without a will is often time‑consuming, expensive, and emotionally draining because every step, from petitions and notices to creditor deadlines and final accounting, must be completed under formal court supervision.
By contrast, even a basic will allows individuals to choose their beneficiaries, select a trusted personal representative, and reduce procedural complications. Legal guides consistently emphasize that executing a will gives you control over who receives your property and helps streamline the probate process by eliminating the guesswork that intestacy creates.
Beyond creating a will, two additional planning steps are often just as important:
- Update beneficiary designations on life insurance, retirement accounts, and POD/TOD accounts, as these assets bypass probate entirely and pass directly to named beneficiaries.
- Consider a living trust if you wish to avoid probate altogether, eliminate the need for ancillary probate in another state, or simplify administration for family members.
If someone dies without a will, state law, not personal preference, determines who inherits. Intestate probate is formal, often lengthy, and can become costly. Preparing a basic will, keeping beneficiary designations current, and exploring trust planning while alive can dramatically reduce the burden on loved ones. Anyone unsure about their state’s requirements should consult a qualified estate‑planning attorney to ensure their assets pass efficiently and according to their intentions.
FAQs
1. What exactly happens when someone dies without a will?
When a person dies intestate, their assets are immediately frozen. No one, not even close family, can access bank accounts, sell property, or distribute belongings until a court formally appoints an Administrator. The court issues Letters of Administration, which legally authorize the Administrator to act on behalf of the estate. Without these documents, financial institutions and government agencies will refuse to release information or assets.
2. Who decides who gets the money and property if there is no will?
Inheritance is determined entirely by intestacy succession laws, which create a strict order of priority. Typically, the spouse inherits first, followed by children, then parents, siblings, and extended family. This order varies by jurisdiction, but unmarried partners, stepchildren, and friends receive nothing, regardless of their relationship to the deceased. The Administrator must distribute the estate exactly as the statute dictates; personal wishes cannot be considered.
3. Who is appointed as the Administrator or Personal Representative?
Courts follow a statutory hierarchy when choosing an Administrator. Spouses typically receive priority, followed by adult children, parents, siblings, and other relatives. Eligible Administrators must be at least 18, legally competent, and free of disqualifying criminal convictions. If multiple heirs share equal priority, they may serve as co‑administrators, or some may sign a waiver/renunciation allowing one person to serve alone.
4. What is the difference between Letters of Administration and a will’s Letters Testamentary?
Both documents grant authority to manage the estate, but they differ in guidance. Letters Testamentary are issued when a valid will exists, allowing the executor to follow the decedent’s specific instructions. Letters of Administration are issued when no will exists, and the Administrator must follow intestacy laws instead. Multiple certified copies are often required, as banks, title companies, and agencies typically demand originals.
5. How long does probate without a will take?
Most intestate estates take 6–12 months to complete. Typical timelines include:
- Document gathering: 4–8 weeks
- Court appointment and processing: 8–16 weeks
- Creditor claim period: 3–6 months
- Collecting, valuing, and securing assets: 3–6 months
Delays occur when there are asset complications, disputes between heirs, real estate sales, missing beneficiaries, or when ancillary probate is required for property in other states or provinces.
6. What are the costs and fees associated with probate without a will?
Costs commonly include:
- Court filing fees
- Attorney fees (hourly or 1–5% of estate value)
- Appraisal and accounting fees
- Publication and service fees
- Tax preparation and final return fees
- Costs for ancillary probate in other jurisdictions
In some places, such as Ontario, the Estate Administration Tax (1.5% of the estate) significantly adds to expenses. All fees are paid from estate funds before heirs receive distributions.
7. What are the key responsibilities and potential liabilities of an Administrator?
Administrators must:
- File the probate petition
- Notify heirs and creditors
- Collect and safeguard assets
- Prepare an inventory
- Pay debts and taxes
- Keep detailed records
- Manage and maintain property
- Submit a final accounting before distribution
They also owe a fiduciary duty, meaning they must act with strict honesty, accuracy, and loyalty. Mistakes can lead to personal financial liability, even beyond the estate’s value, which is why legal guidance is strongly recommended.
8. What special complications arise in intestate probate, and how are they handled?
Common complications include:
- Exclusion of unmarried partners
- Stepchildren have no inheritance rights
- Blended family disputes
- Property located in multiple states requiring ancillary probate
- Minor heirs needing conservatorships or trustees
- Business ownership or partnership interests
- Difficulty locating heirs
- Complex tax issues or creditor disputes
Most of these challenges could have been prevented through basic estate planning, which avoids the rigid rules of intestacy.
Reources
Contents
