When someone dies without a will or other estate planning direction, this is legally known as dying "intestate." Intestate estates are distributed to heirs according to state statutes. Spouses and children are first in line to inherit intestate estates. If there is no spouse or children, then next of kin inherit. An intestate estate must pass through probate court before it is distributed to heirs. If there are no relatives, an intestate estate passes to the state.
Sometimes people use will substitutes in lieu of wills. These are estate planning techniques that avoid probate. For example, a person may put her property in a trust in lieu of a will, and when she dies, a trustee will distribute the property according to the terms of the trust. Another will substitute is a Totten trust or payable-on-death account. The beneficiary of a POD account presents the death certificate of the account holder to the financial institution, which then disburses the account funds to him as the named beneficiary. When a decedent leaves no will, his heirs should ascertain if he used any will substitutes.
Petition for Probate
If no will or will substitutes exist, an interested party must open a probate estate. The party must petition for an appointment as personal representative -- sometimes called an estate administrator -- in the probate court of the county where the decedent resided. Court filing fees range around $200. Once the court appoints a personal representative, she must publish notice of the proceedings in a local newspaper so estate creditors can make claims for payment. She also must provide notice of the court proceedings to all known heirs.
Administering an Estate
Once the court has appointed a personal representative, she must gather all of the decedent's property and file an inventory of it with the court. She must also pay the estate's debts and file estate tax returns. The personal representative may charge the estate reasonable rates set by law for her services. She may employ experts to assist with the estate administration, such as accountants, lawyers, real estate agents and appraisers.
Read More: Estate Administrator Duties
Distribution and Closure
Once the estate's legal debts are paid, the personal representative distributes the decedent's property to his heirs. The representative must follow the state's intestate succession statutes when determining heirs and the amount of property they receive. A personal representative typically closes an intestate estate by submitting a certificate of closure with the court. The personal representative must ensure all applicable court fees are paid. She must also file a final accounting with the court. The accounting details all bills paid from the estate and all property conveyed to its heirs.
- National Paralegal College: Intestate Succession Rules
- Legal Information Institute: Will Substitutes
- State Bar of Wisconsin: Revocable Living Trusts: Answering Your Legal Questions
- Washington State Probate: Frequently Asked Questions About Probate
- Wayne County Probate Court: Probate Information
- Reda, Ciprian, Magnone, LLC: Illinois Probate Estates for Decedents
- Estateplanners.com: What Is a Totten Trust?
Maggie Lourdes is a full-time attorney in southeast Michigan. She teaches law at Cleary University in Ann Arbor and online for National University in San Diego. Her writing has been featured in "Realtor Magazine," the N.Y. State Bar's "Health Law Journal," "Oakland County Legal News," "Michigan Probate & Estate Planning Journal," "Eye Spy Magazine" and "Surplus Today" magazine.