What to Do When There is No Will? A Guide to Probate

When someone passes away without leaving a will, the probate court assigns a trustee to liquidate the decedent's estate. But do you really need to file for probate in such cases? Technically, no. There are no laws that require the executor or administrator of an estate to file probate documents with the court. For instance, whoever you designate as the beneficiary of your life insurance policy will receive the death benefit directly without any probate process. Real estate that is owned by co-tenants or co-tenants in its entirety is also excluded from probate.

When a person applies for probate, they ask the court to approve and oversee the process of distributing the decedent's assets. If a person dies and leaves a will, probate is required to implement the provisions of that will. There are several incentives that often urge a person to apply for succession, out of their own interest. If you're feeling overwhelmed by the complexity and cost of preparing for the succession process, know that you don't have to do it alone. When they die, their executor could file a short affidavit about the estate in lieu of probate documents.

When a person dies without a will but had assets in their name, there are laws that are used in the probate process that ensure that the inheritances continue to be distributed. If the decedent owned an account in which a beneficiary was named (such as a retirement account), but the beneficiary died before the account owner, probate law requires that account go through court so that the funds can be transferred to the person who is legally entitled to hold them under state law. If an heir discovers that he did not receive what belonged to him by right, and this was because the estate documents were not presented, then he could have the legal grounds to sue him. The need for probate depends on the type of property, how it is owned, and state laws. This is a separate action from the request for succession, since the court must know the existence of a will.

If the total value of the estate is below a certain threshold, then you may qualify for an expedited succession process that is much faster and easier. However, legalization of probate is actually a very common legal procedure and is the way in which some assets must be formally passed from the deceased person to their heirs or beneficiaries. Because of this, small estates are often eligible for a simplified process that usually does not require the use of a probate attorney.

Kristie Funn
Kristie Funn

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