Most people pass away without having created a will.
The first step is to petition the probate court to appoint an administrator.
Certain family members will get legal precedence, but the family can usually decide together who will fill the role.
State laws decide who inherits what, so the administrator has a clear path to settling the estate—and keeping the peace if the law disinherits someone unexpectedly.
We know how hard losing someone is. It can be overwhelming, and dealing with it is neither easy nor simple. It can be even harder when a loved one dies without a will. You may feel like it robs you of a sense of closure, and at a loss when it comes to what your loved one’s wishes might have been. We’re here to tell you that this situation can be a challenge, but it doesn’t need to add to your heartache. Here are some steps and tips to help support you through this difficult time.
Be kind to yourself. Many people experiencing loss find that they feel a range of emotions: anger, sadness, guilt, even feelings of relief or joy. Give yourself permission to feel your feelings, whatever they are.
If your loved one has died unexpectedly, you may find yourself feeling empty or numb. That’s OK. Everyone grieves differently, and nobody can dictate what you should be feeling. Take the space and time you need to process your loss.
You may not be emotionally ready right away to deal with settling your loved one’s debts and going through their belongings. That’s OK too. Some people find solace in this kind of detailed work. Others will want to put it off until they have grieved a bit. Laws vary by state in terms of how much time you have to contact the courts, but you will generally have at least 30 days.
When you’re ready to start handling the details, it’s time to choose an administrator for your loved one’s estate.
When someone writes a will, they name a specific person—an executor—to carry out their wishes. When someone dies without a will, the court appoints someone to handle their estate instead; rather than an executor, this person is called an administrator.
A member of your family should petition the probate court (sometimes called surrogate court, depending on the state) in the county where your loved one had their primary residence to appoint an administrator for the estate. The petitioner should ideally be the person who will be appointed administrator.
If the person was survived by a spouse, he or she should petition the court, because the widow or widower will almost always be named administrator. Otherwise, any of their children can submit the petition.
If you and your family all agree on who should be the administrator, it is possible for you to choose your own rather than following the priority order.
This process—and all other aspects of the estate—will follow the laws and guidelines of the state where your loved one lived. These rules vary, but in general the petitioner will have to provide a certified copy of the death certificate, an estimate of the value of the estate, and the names and addresses of all potential heirs, as well as a fee. Refer to the laws in the right state for more detail. We recommend you contact a lawyer in that state if anything is uncertain or unclear.
The court will then issue letters of administration naming the administrator of the estate. If your loved one had multiple adult children, the judge generally has full discretion as to which will be named administrator (contrary to a common misconception, it does not simply go to the oldest child).
The court will generally take several factors into consideration, including proximity (e.g. if one child lives in the same county or state) and profession (lawyers or money managers will sometimes be given priority). There are also several factors that can automatically disqualify someone: if he or she is under 18 (or 21 in some states), if he or she has a felony conviction, or if there was a business relationship between the child and the parent. (There may be others; please consult the laws in your relevant state.)
If you and your family all agree on who should be the administrator, it is possible for you to choose your own rather than following the priority order. For instance, if the surviving spouse would like one of their children to administer the estate instead, they can submit a written waiver of their priority to administer the estate. Similarly, if the children unanimously want one among them to be the administrator, the others can all submit written waivers.
As the administrator you will now begin the probate process. It can be involved, but we are here to walk you through it.
The steps will vary depending on the size of the estate and your loved one’s state of residence, but you may have to attend a probate hearing, secure a probate bond, and track down all of the person's assets and potential creditors. It is strongly advised that you consult and/or hire a lawyer in the relevant state, particularly if the estate is large or complex.
Bear in mind that, even though there is no will, your loved one may have entered into agreements that supersede the probate process. For example, any assets that were placed in living trusts will remain in the trust until they are distributed, and in general will completely avoid probate and any state inheritance laws. Certain kinds of business or real estate relationships such as joint ownership will also circumvent probate.
In the absence of a will, who inherits what is set by the estate laws of the particular state. These laws lay out in detail how the estate is divided in every situation. For example, in most states, a surviving spouse inherits either all or the largest share of the estate. If there is no surviving spouse, the children each receive an equal portion of the estate, and so on.
This detailed inheritance law may help you avoid the contentiousness that sometimes surrounds the settling of a will. The law dictates who gets what, without ambiguity.
However, this can unfortunately involve its own set of problems. For instance, if the person who died was estranged from one of their children, that child still stands to inherit an equal share; their lack of closeness—and indeed all the feelings or intentions of the parent—is not taken into account without a will. Similarly, if the person had stepchildren who were not formally adopted, these children do not get a share of the estate, even if they were regarded as equal children by the family.
In the absence of a will, who inherits what is set by the estate laws of the particular state. These laws lay out in detail how the estate is divided in every situation.
This is a difficult and emotional time for everyone. As the administrator, you may need to prepare yourself to receive the brunt of some of these strong emotions. Calmly explain that these are not your choices; in the absence of a will, you are only able to follow the laws as they are written. Whenever possible, we advise you to embrace your role as administrator to keep peace in the family. For example, in the case of stepchildren who have been inadvertently disinherited, you may be able to convince the siblings to chip in and gift them an equal share.
Your part in the process is mostly done. If you are set to inherit a portion of the estate, it is time to begin weighing financial decisions and tax implications. If you think you know of any assets or obligations that your loved one had that the administrator might not know about, bring them to his or her attention as soon as possible. Above all, even if you think your share of the estate should be bigger, resist the urge to blame the administrator. They are just the person who signs the checks; estate law, not them, dictates exactly who gets what.
If, however, you have a solid reason to believe that the administrator is not faithfully or properly settling the estate, you may be able to get them removed and replaced. Definitely consult a lawyer before taking any action, and keep in mind that this will require concrete evidence of incompetence or misconduct, and that it could be a drawn-out and painful process.
Also remember that this is a fraught and difficult time for everyone—including the administrator. Before taking drastic action that might have long-lasting emotional repercussions, reach out to them with your concerns. Maybe they are overwhelmed, or too grief-stricken to complete their duties right away. A simple conversation can clear up many disagreements without having to involve legal action ●
The most recent will always takes priority, unless it is invalidated. Probate court will determine which will is valid.
These rules differ by state law, but in general a will can be declared invalid if: there were no witnesses or the witnesses were not proper witnesses, the person writing the will was not mentally competent at the time they wrote it, or was subject to undue influence, or there was fraud involved in its creation.
The person's estate is considered "escheat" and is taken over by the state.
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Whether or not your loved one left a will, you will need to make sure their property is passed on to the right people. With a will, inheritance will follow your loved one’s wishes; without it, state law will decide. Either way, following these rules will ensure that your loved one’s life and legacy are properly honored.