The probate process itself isn’t dramatically altered when someone dies without a will. The major differences occur at the beginning and end of the proceedings. The court must appoint an administrator to handle the estate because a will doesn’t exist that names an executor to do it -- and the state will decide who gets your parent’s property because she didn’t name beneficiaries. Not all states do these things in exactly the same way, but some general rules apply.
Your first challenge is identifying what your parent owned and what assets require probate. Life insurance proceeds and retirement plans often pass directly to beneficiaries named on the account or policy. You can just send the companies copies of your parent’s death certificate and they’ll take care of making the transfers. Real estate, bank accounts, stocks and securities may have survivorship or payable-on-death provisions and, if so, they don’t have to go through probate either. If your parent was collecting Social Security, notify the Social Security Administration of her death and return any payments that come in after the date of her death. If the only property left over is personal and not of any significant value, it may not be necessary to open probate, but check with a lawyer before you make this decision.
Probate provides a legal means of transferring ownership of property out of the deceased’s name and into the name of a beneficiary. Any “interested person” can typically open probate. As your parent’s descendant, you would qualify. Contact your county probate court to find out what paperwork you need to file to open an estate. If you want to act as administrator, you can usually indicate this in your petition to open probate, but if your other parent is alive, the court will most likely appoint him if he wants the job. If he doesn’t, some states allow him to nominate another individual to act in his place. Other states move down a statutory list of kin and others, including your parent’s creditors, until the court finds someone willing to serve. If you’re selected, most states will require that you take an oath of office before the court will issue you letters of administration so you can act on behalf of your parent’s estate.
Read More: Can You Contest a Will After Probate?
Probate procedures are largely the same with or without a will. If you’ve already identified the property that requires probate, the next step is to complete an inventory for the court, listing the assets and citing their values. Some property might require professional appraisals. You’ll also have to send notice to your parent’s creditors that her estate is in probate, advising them how to make claims for the money they’re owed. You can check your state’s website to find out how you’re required to do this or consult with a lawyer to make sure you get it right. You’ll have to prepare a final tax return for your parent as well as for the estate if any funds come in after her death; an accountant can help you with this. Check to see if your state has an estate tax. Federal estate taxes are only due if the value of your parent’s estate -- after subtracting debts, liens and the costs of probate -- exceeds $5.34 million as of 2014.
Closing the Estate
When it comes time to distribute your parent’s property to beneficiaries, you won’t have any say in who gets what if she died without a will. All states have rules for intestate succession, which is a statutory list of people who are entitled to inherit. If your other parent is alive, he’ll get a sizable portion of the probate estate and the balance would typically go to you and your siblings, if you have any. Otherwise, you and your siblings would inherit the entire estate. In some states, you must file a final accounting of the estate with the court before you can make distributions.
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.