When you die intestate, it means that you die without a will. This may require that your estate be probated through the probate court.
Jump ahead to these sections:
- Intestacy Explained
- 1. Account for All Assets
- 2. Determine Where to File for Probate
- 3. Obtain “Letters Testamentary”
- 4. Identify Heirs
- 5. File a Request for Probate Administration
- 6. Provide Notice
- 7. Conduct Probate Hearing
- 8. Transfer Titles / Distribute Property
- 9. Request Approval
- 10. Obtain Discharge Order
The probate court applies a body of laws called the laws of “intestate succession.” These laws authorize the court to distribute your property to your heirs.
The court will appoint someone — usually a family member — as the administrator of your estate to make sure your property gets distributed. This can be a very stressful and expensive process and it can take months or years to complete.
If you do not have a will, you should make one. It will make the probate process much easier. However, it will help you to understand what you should expect as you go through the probate process for intestacy if you choose not to make a will or if you serve as the administrator of someone else’s estate.
Intestacy is defined as the condition of a decedent’s estate when a decedent dies without a will. The distribution of the decedent’s estate becomes the responsibility of the probate court.
When an intestate estate must be probated, there are 10 things that you must do to fully administer an intestate estate.
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1. Account for All Assets
To prepare for probate, the first thing you need to do is to account for all the property that the decedent owned and create an itemized list of the property that will need to be probated.
This will be all the property that is not transferred by some other method based on the nature of the property. For example, the following items of property are not part of the probate estate:
- Life insurance
- Other payable on death (POD) accounts
- Revocable living trusts
- Jointly-held bank accounts
These items are automatically transferred according to the terms of the respective instruments or accounts.
2. Determine Where to File for Probate
Probate normally occurs in the county where the decedent was domiciled (where they lived) when they died.
However, if the decedent owned real property (land) in another state, you may need to initiate probate proceedings in the state where the land is located as well.
3. Obtain “Letters Testamentary”
When you are ready to file for probate, you must petition the court for “Letters Testamentary” or “Letters of Administration.”
This means that you request permission from the court to serve as the personal representative of the decedent’s estate.
Once the court issues Letters Testamentary, you are responsible for following the administrative procedures of the probate court and administering the decedent’s estate.
4. Identify Heirs
Heirs are the persons related to the decedent by blood (relatives), marriage (spouse), or adoption (treated like a biological child), who are alive at the time of the decedent’s death. Children not yet born at the time of a decedent’s death are generally treated as living for purposes of intestacy.
Every state has a statute that prioritizes classes of heirs according to how closely they are related to the decedent. A typical statute prioritizes as follows:
Every state statute also has a cutoff, at which point the state determines that heirs are excluded from inheriting a decedent’s property.
These are called “laughing heirs” because they’re so far removed from the decedent that it’s said they’ll be more joyous over their inheritance than sad about the decedent’s death.
The decedent’s estate will go to the state if you cannot find a living heir in any of the classes included in the state’s intestate scheme before you reach a laughing heir. The legal term for this is that the estate will “escheat” to the state.
You’re responsible to locate and notify all living heirs who have a right to inherit under the state’s intestate distribution statute.
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5. File a Request for Probate Administration
Once you have identified and notified all of the decedent’s living heirs, you are ready to file for probate. You must submit forms to the probate court and request probate administration.
You’ll submit to the court the names and addresses of all of the decedent’s living heirs. Upon approval, the court will begin probate proceedings to administer the decedent’s estate.
6. Provide Notice
In addition to notifying all of the decedent’s heirs, you are required also to notify the decedent’s creditors that the decedent has died and that the estate is being probated.
This is required to give the decedent’s creditors an opportunity to have the decedent’s debts paid before the estate is distributed to the creditor’s heirs. But creditors are not likely to be aware that a debtor has died, so notice is required.
Each state has rules about the type of notice that is required for creditors. There are two types of notice that can be required:
Actual notice means that you must “actually” or directly contact the creditor with notice sufficient to make them aware that they may have an interest in these probate proceedings.
Actual notice need not be inefficient or burdensome. Usually, normal mail service is accepted as satisfying “actual” notice to creditors. Actual notice is usually required when:
- Creditors are considered to be “known or reasonably ascertainable.” For example, if the decedent spent the last three months of his or her life in a hospital, it’s likely that the decedent has hospital bills that must be paid. The hospital would be considered a “known or reasonably ascertainable” creditor and likely is entitled to actual notice, even though the decedent may have died in the hospital.
- The executor (if there is a will) or the personal representative (in intestacy) is also a beneficiary or intestate heir. Under these circumstances, a personal representative with an interest in the value of the estate may be disinclined to provide notice to creditors. Actual notice increases the likelihood that the creditor is made aware of their interest.
Publication notice: Because there are likely to be creditors that are not “known or reasonably ascertainable” (for example, you may not be aware that the decedent had an outstanding balance on his bill for tire service at the local auto shop), you may be required to make publication notice.
Publication notice simply requires that a notice of the decedent’s death and the institution of probate proceedings is published in a local news medium (usually the local newspaper is sufficient) for a short period of time (for example, two times a week for three weeks).
Under either notice requirement, you are required to make “reasonably diligent efforts” to provide appropriate notice to creditors.
In relation to the requirement of notice to creditors, every state has a statute (called a “non-claims statute”) that sets a time limit by when a creditor must file its claim against the estate. Most states include two non-claim periods:
- A short period (typically 2-6 months) that runs from the time probate proceedings are commenced.
- A long period (typically 1-5 years) that runs from the date of the decedent’s death.
If probate proceedings are not commenced and, therefore, the shorter non-claims period is never triggered, then the longer non-claims period would apply. If a creditor, having been provided with appropriate notice, fails to file its claim within the applicable non-claims period, its claim will be barred.
7. Conduct Probate Hearing
Once creditors have been notified and the applicable non-claims period has closed, the court will conduct a hearing, at which the court will:
- Receive an accounting of the decedent’s property
- Identify legal heirs
- Resolve any conflicts that may arise
- Confirm the payment of all taxes (annual income taxes, estate taxes, etc.)
8. Transfer Titles / Distribute Property
Upon the probate hearing, the court will order the transfer of necessary titles to effectuate the appropriate distribution of property to the decedent’s legal heirs.
As the personal representative, you must then distribute all of the decedent’s property to rightful heirs.
9. Request Approval
When all debts and taxes have been paid, appropriate titles have been transferred, and all property has been distributed, you will submit to the court for approval of the completed administration of the decedent’s estate.
10. Obtain Discharge Order
The court will entertain your request for the closing of the decedent’s estate in probate.
Upon approval, the court will grant a discharge order closing the probate administration of the estate.
You can read more about the probate process in our guide on how long probate court takes.
A Lot Happens When Someone Dies Intestate
The only significant difference in the process from when someone dies with a will is the statutory directive to distribute property to the decedent’s heirs.
Identifying and notifying the appropriate heirs adds a significant step to the process, especially for the personal representative responsible for administering the estate.
If you've dealt with dealing with an estate without a will, you know the pain of the extra steps you had to take and might be considering making a will yourself. If so, take the first step and compare some of the most popular will services and estate planning attorneys below.
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