State probate courts generally oversee the administration of matters involving wills and trusts. A person who dies without a will is said to have died “intestate.” The intestate succession laws of a state dictate how to divide the assets and property of the deceased. There are generally two major parts during probate: payment of debts and taxes, and the distribution of assets.
After a person dies, a close family friend or relative should file a petition with the probate court to begin the probate process. Courts generally have specific forms that can be used whether there is a will or not. If there is no will, generally the petitioner must file a document stating that the decedent died without a will, and attach a copy of the death certificate to the petition. The court must appoint a personal representative to handle the administrative tasks of the estate. State laws vary with regard to who may act as a personal representative, also known as an “executor." Generally, an executor must be a resident of the state where the decedent died or else be a relative.
Debts and Taxes
The personal representative must notify the creditors and heirs of the deceased and take an inventory of the deceased's property and assets. Creditors may make claims against the estate; generally, the state’s probate laws dictate the priority of the claims. For example, administrative costs are typically paid first. Those costs include items such as the court fees and appraisal fees. Family allowances must be paid next. This is money given to the deceased's surviving spouse or children to help handle expenses during the estate administration. Next on the list is funeral expenses, taxes, and other debts, such as credit card debt.
If there is still money remaining after the debts and family allowances are paid, the state’s intestate succession laws mandate how the rest of the property is divided. State laws may vary on the specific distribution scheme. In general, the property goes to the surviving spouse and the decedent’s children. If the deceased died without a surviving spouse or any children, the property generally goes to the decedent’s closest living relatives.
If you die without a will, you have no control over who will act as your personal representative, or how your property will be divided. Creating an estate plan allows you to control many aspects of how your property is handled after you pass away. Common estate plans include a will or a trust. You should speak to an estate planner in your area to help create the most appropriate plan for you.