Less than half of Americans -- only 35 percent – had wills as of 2010, according to Forbes.com. Unsurprisingly, states must implement laws to address the estates of those who do not. These people are said to have died “intestate,” but their property must usually still pass through probate to transfer title to heirs. Someone must also pay the decedent’s debts, and probate takes care of this also. Probate without a will is very similar to probate with one, but it usually involves a little more court supervision.
Normally, probate opens when a will’s named executor files it with the court. If there is no will, any individual with an interest in the decedent’s estate can apply to the court to oversee probate by filling out an application. Usually, the court gives family members first preference. An unrelated individual can only assume office if all family members waive their rights to do so. If the court approves the individual’s application, the clerk gives her “letters of administration,” which allow her to legally act on behalf of the estate. An administrator's role is virtually identical to that of an executor when the decedent leaves a will. However, unlike with an executor, most states require an administrator to post bond before she takes office. This is an insurance policy that protects the estate if she mismanages it.
Identifying and Notifying Heirs
When an administrator takes office, she must notify all potential heirs that this has occurred. In some states, such as Mississippi, she must first file a petition asking the court to formally identify these individuals, and she must also publish a notice in the newspaper to notify any potential heirs the decedent’s family might not know about. In other states, such as Michigan, the administrator can send written notice directly to the decedent's heirs. Heirs generally include all of the decedent's next of kin.
Managing the Estate
After notification to the decedent’s heirs, probate usually progresses just the same as it would had the decedent left a will. Assets are “marshaled,” or identified, appraised and secured for safekeeping. Most states require the administrator to file a list of these assets with the court. The administrator must then notify the decedent’s creditors of their right to present claims to the estate for payment. This usually involves mailing direct notice to those she can identify through a review of the decedent’s personal papers, as well as publishing a newspaper notice for any unknown creditors. Generally, creditors have a limited number of months in which to make claims. If they don’t do so before the deadline, they lose their right to collect from the estate. As claims come in, the administrator must determine if they’re legitimate and whether the estate is able to pay all of them. Usually, the administrator must pay the estate’s costs of operation and the decedent’s funeral expenses first, followed by any taxes owed. If there isn't enough money left over to pay the creditors, she must notify the court.
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Disbursement to Heirs
After the administrator pays all of the estate’s expenses, she can distribute the balance of the estate to the decedent's heirs. She can’t choose to whom she gives the decedent’s property. If he died without a will, she can only follow his state’s laws of intestate succession. This is a list of relatives, beginning with those most closely related to the decedent and finishing with more distant kin. Distant kin -- usually siblings, nieces and nephews -- can only inherit if no one more closely related is alive to accept the decedent’s property. If an estate does not have enough money to pay all of the creditors, the decedent's heirs typically receive nothing. When distribution is complete, the administrator can close the estate.
Beverly Bird is a practicing paralegal who has been writing professionally on legal subjects for over 30 years. She specializes in family law and estate law and has mediated family custody issues.