When a person passes without a will, they are said to have died “intestate”, that is, without a will (or trust). Each state has different rules for how the situation is handled, but generically, the steps in the different states are a lot the same.
When a person dies intestate you may have to “probate” the estate. This type of probate is called intestate succession. It starts by petitioning the probate court to start administration of the estate. Once the petition is granted, the process is very similar to a traditional probate. The estate is inventoried and distributed. The main difference is the court will oversee the process and has to give permission for the plans. In traditional probate, the will is the plan.
Of course, there are some assets that are not passed in a will that will be outside the scope of succession. These assets may include (typically things with a survivor clause):
- Retirement accounts with a beneficiary
- Life insurance
- Banks accounts with a payable on death rider
- Stocks in a transfer on death account
- Vehicles (if allowed in your state) with a transfer on death title
- Land that has a beneficiary deed filed
- Land that is held as joint tenancy with right of survivorship or as a tenancy by the entirety
There are many questions to be answered, beyond the scope of this post, to decide if an estate needs to be taken through intestate succession.
If no will, who is executor?
In the administration proceeding, you will ask the court to appoint an executor of an estate without a will. This person is usually called the administrator.
This is usually done in the petition for administration. The person appointed needs to be:
- Willing to do the job
- Prepared to pay for a bond
- Familiar with the estate, or willing to dig in and learn the estate
- Ready to distribute the estate
- Willing to settle all of the family squabbles that may arise
- Prepared to litigate the estate if the administration is challenged
Probate without a will is typically not any more difficult that probate with a will. You just need to make sure that all of the steps are taken, the i’s dotted, and the t’s crossed.