When someone dies, their estate must go through the probate process in order to determine who is entitled to their assets and how those assets should be distributed.
Unfortunately, if the deceased didn’t leave a will, it can complicate matters significantly. This is because additional steps must be taken.
In this article, we’ll discuss what you need to know about filing probate without a will and offer some guidance on the best way forward.
What Is Probate?
Probate is the legal process by which a person’s estate is administered after their death. This includes identifying, gathering, and distributing the deceased’s assets to any entitled beneficiaries. This is a court-supervised process and can include the assignment of a personal representative to coordinate estate matters.
The duties of a personal representative fall into three categories: compiling assets, paying bills, and distributing assets to heirs. There will also be notices sent to creditors and beneficiaries; these notices are best done with the assistance of an experienced attorney.
A readily accessed, valid will can make filing easier. Because of this, The U.S. Will Registry offers free will registration and estate document storage for this purpose.
Probate Definitions
In order to understand the probate process, it is important to know some key terms.
County Clerk of Court
The County Clerk of Court has the responsibility of managing legal proceedings in the county where the deceased resided. This is not an actual person who is a clerk in a courtroom. Nonetheless, the County Clerk of Court office can provide you with any forms and paperwork needed for the process. It’s important to bring all necessary documents, such as death certificates, identification, as well as proof of address when visiting this office.
Intestate
If the deceased died without a valid will, they are considered to be intestate. In this case, the estate must go through probate in order for the distribution of assets according to state laws. This can become complicated and time-consuming so it is important to understand all of your options before beginning the process.
Probate Court
The probate court oversees and resolves any disputes related to probating an estate. The next step is to file a petition with the probate court in the county where the deceased lived. This process requires certain documents, such as death certificates, deeds, and tax returns. Depending on your state’s laws, you may also need to publish a notice of administration in local newspapers.
Personal Representative
The court will appoint a personal representative to handle the probate process. This individual is responsible for collecting and distributing assets according to state laws. They may also be responsible for filing tax returns and paying any debts or taxes due on behalf of the deceased’s estate.
Beneficiary/Beneficiaries
After gathering all assets, the personal representative must identify any beneficiaries and distribute the assets according to state laws. Beneficiaries can include family members, friends, or charities.
Dying Without a Will
When a person dies without a will, their estate must go through the probate process in order to determine who has the entitlement to their assets and how best to distribute those assets. This can become complicated so it is important to seek legal advice when filing probate without a will.
State laws for who qualifies as a beneficiary and the process of distributing assets will vary by state. Find details for your state here.
State law often has detailed instructions to handle various circumstances (divorce, no living immediate family members, etc.)
It is important to have a will, but also to register and store the will so that it can be located when needed and will move more smoothly. Using The U.S. Will Registry‘s free will registration and free estate documentation storage ensure that a valid will can become easily accessed when needed.
Types of Probate
The probate process typically involves gathering the deceased’s assets, paying debts and taxes, and distributing any remaining assets to beneficiaries. The entire process can take anywhere from 6 months to 2 years or more depending on the size of the estate and any disputes that may arise.
There are three main types of probate: Formal Administration, Summary Administration, and Disposition Without an Administration.
Formal Administration is the standard, most common form of probate. The process starts once an individual passes away and the executor of the will petitions the court to become appointed as personal representative.
Summary Administration can happen when the total value of property and assets in the decedent’s estate has a worth of $75,000 or less, or when the death occurred more than two years prior to filing probate. This process is expedited compared to the Formal Administration.
Disposition Without Administration involves skipping the probate hearing. This is only available under specific, unusual circumstances relating to an estate having very few financial resources.
Probate Timeline
The timeline for the probate process can vary greatly depending on the complexity of the estate and any disputes that may arise. Generally, it takes between six and 12 months from the time an attorney is retained unless there are complex legal issues involved with the estate.
The steps include:
- Filing the Will
- Petitioning for Administration
- Appointing a Personal Representative
- Determining the Validity of a Will
- Notifying Creditors
- Accounting
- Closing
Probate FAQs
There are many questions that arise when it comes to filing probate without a will. These can include:
When Do You Require a Probate?
Nearly every estate requires filing probate, though this can vary by state. However, not all assets will pass through the estate or probate court. Common exceptions include retirement accounts with named beneficiaries.
Do I Need an Attorney?
In a word, yes. In many states, it is a legal requirement that an attorney represent you at probate hearings.
How Long Does it Take to Notify Beneficiaries?
Each state has set timelines for the notification process once a personal representative has been assigned.
How Long Do You Have to File Probate?
Again, this can vary by state, but typically you have days or weeks to notify the court of the decedent’s death.
Probate Court Disputes
In some cases, disputes may arise during the probate process. These can include disagreements over asset distribution or other issues related to administering the estate. It is important to seek legal advice if a dispute arises as it can significantly delay the process.
Article Summary
Filing probate without a will can become complicated and time-consuming. Thus, it is important to understand all of the steps involved, including visiting the County Clerk of Court, filing with the probate court, appointing a personal representative, identifying beneficiaries, and resolving any disputes that may arise.
The entire process can take anywhere from 6 months to 2 years or more depending on the size of the estate and any complications that may arise.
For more information on filing probate without a will, reach out to us today.
