Probating Estates Without A Will

13 July 2018
 Categories: Law, Blog


Some people have been given some bad advice and believe that they can avoid having their estates go through probate if they never make out a will. Here are the facts: no matter what state you live in, your final affairs will pass through the probate court in your county of residence after your death. There are a few exceptions made for estates where very little was owned, but very few people will fall into that category. There are consequences for those that die without a will, so read on to learn more.

What is the purpose of probate?

Dealing with estates is not just a facet of law but an entire legal category with its own rules and its own court system. Probate came about as a means to ensure that those who were owed money by the deceased had a remedy to be paid their rightful monies. It also ensures that the property holdings of the deceased are disposed of properly and according to the probate laws in your state. This means that you can use any means necessary to keep some of your property out of probate, but you probably cannot avoid the process, even if no will is present.

Dying Intestate

When no will exists, or one is never located the state still needs a way to deal with the estate. Bills need to be paid, and the property needs to be given to the appropriate loved ones. Unfortunately, some of the most personal decisions will be handed over to strangers when there is no will to guide them and what is decided could be very far from what the deceased would have wanted.

The Executor

One the most important choices that the state will be making on behalf of the deceased is who will be the executor (or personal administrator) of the will. This position is one of trust and discretion when made by the deceased but will become a decision based on family ties when it has to be made by the probate court. Often the person chosen by the probate court might be the surviving spouse and then the oldest adult child if need be.

Intestate succession

Not only will the probate courts take over the task of dealing with creditors when there is no will, but they must also deal with the property of the deceased. In the absence of a surviving spouse, who would automatically inherit the entire estate, the property is inventoried and evenly divided up between the adult children of the deceased. In most cases, there are lists of relatives that follow if there are no living spouse or children in the order of relation to the deceased.

If you want to be the one to make these important decisions, then you need a will. Speak to an estate attorney like David R Webb Attorney at your earliest convenience.