How does probate work if there is no will?
In an ideal world, when someone passes away they will leave a will that clearly states who is to be executor of the estate, and who will be receiving what from the deceased’s estate. However, all too often people don’t get around to making a will, and this can be for a variety of reasons.
One of the most common reasons for there not being a will is the untimely death of a person. We all expect – and hope – to live well into old age, and therefore many of us don’t think twice about leaving a will until we reach our fifties or sixties – even later for some. However, nobody knows what life has in store for them. Those that are approaching old age or those that have been diagnosed with a terminal illness have time to think about preparing a will, as morbid as that sounds. However, people that are killed in accidents, often at a younger age, were clearly not expecting to die and often may not have made any provisions for a will.
The lack of a will can often make things difficult after a death, and can be the cause of many arguments between the surviving relatives and loved ones of the decedent. The only way for this to be dealt with fairly is for the probate courts to take over as executors of the will.
When a person dies and leaves a will, this is known as a dying testate, the estate is dealt with by the executor names by the deceased (subject to agreement by the named person). The estate is then distributed in accordance with the deceased’s wishes as stated on the will. When a person dies without a will, this is known as a dying intestate, and as there is no will there is no executor to be appointed. Also, there is no way of knowing what the deceased’s wishes were with regards to distribution of the estate. This is where the probate court takes over, appointing an administrator to act as executor and distributing the estate in accordance with state law (which may vary from state to state).
According to most state laws, the majority of the estate will go to a surviving spouse or children. Of course, this can result in many disagreements, with family members trying to claim the deceased ‘would have wanted’ them to have this, that or the other. However, without the presence of a will there is no way for the courts to determine what the decedent would have wanted, and therefore the only way the estate can be distributed is in accordance with state law.
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