Once a person dies, a loved one usually files a petition in probate court to start proceedings to settle the estate. Estate settlement involves appointing a person to manage the estate -- an executor if there's a will, an administrator otherwise -- including final bill payment and distribution of the deceased's property. If no one files for estate proceedings in court, what happens next depends on the type of property the deceased, known as the decedent, owned, whether he had debts and state law.
Some or all of the estate's assets may be lost if no one files for estate proceedings in court. For example, if a decedent owned a home with a mortgage, because no one is working on the estate, the mortgage won't be paid and the lender will foreclose on the home. Further, the person handling the estate usually secures the decedent's valuable property such as a car. If no one has taken any action on behalf of the estate, valuable items be may damaged or lost. A car, for instance, may be deemed abandoned property by the state if left parked for an extended period of time.
State laws don't allow creditors to file claims against an estate once the deadline for the claims passes. For example, claims against the estate of a Florida resident must be filed within two years of his death. A creditor of the decedent may file a petition to start estate settlement proceedings if the decedent's relatives don't file. A creditor of the decedent with a valid claim has a legal interest in the estate because payment of the debt comes from the estate's assets. State laws differ on procedures and deadlines. A creditor often files a petition for administration, which is used when a decedent doesn't leave a will, because the creditor has no way of knowing whether the decedent had a will or its location. Because the creditor has to list the decedent's heirs on the petition, he may have to investigate the decedent's family history. The court may appoint a public administrator to manage the estate if no relatives step forward after the creditor files a petition.
Necessity of Proceedings
State laws differ on when formal estate proceedings are necessary. Some estates don't require court proceedings; these include the estate of a decedent who left no assets or only left property that isn't subject to state probate laws like property in joint tenancy. For example, if a brother and sister own a house together as joint tenants, and the brother dies without having any other assets or debt, because they were joint tenants, the brother's ownership interest automatically passes to his sister at death, leaving an estate with no assets or debt to settle. Assets that pass outside of probate commonly include life insurance proceeds and retirement accounts; these assets go to the person the decedent named as beneficiary on the plan paperwork.
If an estate is opened by a person other than a relative or beneficiary, such as a creditor, the court-appointed administrator has to confirm and try to locate all heirs. The estate may have assets left after all creditors are paid, and the heirs have a right to the assets. If there are no heirs or the court can't find them, what happens to the assets depends on state laws. Usually, the estate goes to the state of residency of the decedent. For example, if a person in Colorado dies without a will and the public administrator can't find any relatives, the state gets the assets.
- Mercer County, New Jersey: Probate of Wills
- Law Offices of William G. Morris, P.A.: Creditors Must Protect Themselves in Probate
- Utah Probate Solutions: What Property Can Be Transferred Without Probate?
- MK Consulting, Inc.: The Unclaimed Property Page
- Colorado State University Extension: How Property Passes at Death
Anna Assad began writing professionally in 1999 and has published several legal articles for various websites. She has an extensive real estate and criminal legal background. She also tutored in English for nearly eight years, attended Buffalo State College for paralegal studies and accounting, and minored in English literature, receiving a Bachelor of Arts.