Going Through Probate Without a Will

Going Through Probate Without a Will

If a person dies without a will, it is called "intestate," which means "without a will."  His or her property will pass to the heirs of the estate according to the state's inheritance laws.  In other words, the state will make a will for you, if you don't make one before you die.  All fifty of these United States have statutes or laws on their books controlling this process, called probate laws.

The purpose of these laws or "intestate succession statutes" is to legally and fairly distribute the property of the deceased or decedent in a manner that is consistent with how the average person would have distributed his or her estate, if he or she had made a will.  However, this process can have results that would greatly differ from the way that an individual would have designed it.  Even if people involved in the probate case know the wishes of the decedent, without a will, the probate process follows the same steps, with no exceptions.

The 1990 Uniform Probate Code, for many states, is the starting point of the probate laws.  Even so, the probate laws of different states can vary greatly from each other and from the Code itself.  The Uniform Probate Code does provide the best general reference for a general discussion of probate.

The Uniform Probate Code, or "Code" allows close relatives to take possession of property before distant relatives.  The classes of relatives provided by the Code follow a certain pattern.  First are the spouses and descendants, (children and grandchildren, etc), parents, descendants of decedent's parents (siblings, nieces and nephews), lastly, grandparents, and descendants of grandparents (aunts, uncles, and cousins).  Anyone who is legally adopted is treated the same way as a biological relative.  If there is no relatives in one of the classes named above, then the property goes by default or "escheats" to the possession of the state.

According to the Code, a surviving spouse will inherit the entire estate or the majority of it, after the taxes and debts against the estate have been paid. There are certain rules that control the entire process of succession.  For example, the surviving spouse gets the entire estate if all the children involved in the case are of the decedent and his or her surviving spouse.  The surviving spouse is also fully entitled to the entire estate if the decedent does not have any surviving descendants or parents.  If the decedent is survived by his or her parents, the first $200,000 of the net estate goes to the surviving spouse, and also three-fourths of the rest of the estate. 

In addition to those Code laws, if the decedent is survived by children or descendant who are also the descendants of the surviving spouse and ones who are not, then the surviving spouse is entitled to the first $150,000 of the net estate and one half of the rest.  If the decedent is survived by descendants who are not descendants of the surviving spouse, then the surviving spouse is entitled to the first $100,00 of the net estate plus one-half of what's left of the estate.