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What Happens During Probate when A Person Didn’t Have a Will?

Aug. 15, 2018

On this blog, we have talked about what happens during probate when a person passes away with a will in place. However, not everyone has a will.

Under these circumstances, the probate process will follow state laws for distributing assets, appointing representatives and assigning guardians. Below, we look at what these laws say and what it means for family members.

Distributing Assets

According to state laws, a person’s assets will go to his or her surviving spouse, or descendants if there is no surviving spouse. If the decedent had children or grandchildren (or other descendants) from a previous relationship, those children would receive half of the assets and the spouse would receive the other half. Directions for asset distribution among other types of familial structures involving spouses and descendants can be read here.

If a person was not married and has no descendants, assets will go to the decedent’s parent(s).

If there are no surviving parents, assets will go to siblings or the children of siblings.

If there are no parents, no siblings and no descendants of siblings, then assets will go to the person’s maternal or paternal grandparents, then aunts and uncles, and then cousins. In rare situations where there are no heirs, the assets would go to the state.

Appointing Representatives

When a person has a will, he or she typically names a representative to administer the estate. However, if a person died without a will, then the courts will appoint someone to do this. This could be a person, a bank or some other entity who may have no personal knowledge of the decedent’s life or wishes.

Naming Guardians

Without a will, the care of a decedent’s children will be in the hands of a court. If there is no surviving spouse or parent, it may not be clear who should be named as a guardian. And there is no guarantee that a court-appointed guardian is going to be the same person that the decedent might have wanted.

Navigating Probate without The Guidance of A Will

It may be of comfort to know that there are specific procedures and guidelines for handling a person’s affairs after he or she passes away. However, this can still be a challenging, emotional process so it can be helpful to consult an attorney with questions about the legal process.