Probate Without a Will

WHAT TYPE OF PROBATE PROCEDURE IS REQUIRED IF SOMEONE DIES WITHOUT A WILL?

There are two types of probate estates:  (1) intestate; and (2) testate.

The probate procedure followed if the decedent  did not leave a valid Will is referred to as an intestate estate..

A probate procedure followed if the decedent did leave a valid Will is referred to as a testate estate.

Q. What is the difference between a testate estate and an intestate estate?

A. For a testate estate, the Will controls who receives the decedent’s assets and the Will nominates an executor who manages the probate process.

In an intestate estate, state intestate succession laws dictates who is entitled to the estate.  State laws also determine who the court appoints as the personal representative to manage the probate process.

One other difference between a testate estate and an intestate estate is the rules regarding surety bonds.  The person who prepares a Last Will and Testament can include instructions waving  the executor’s requirement to purchase a surety bond.  This requirement of the personal representative to purchase a surety bond cannot be waived in some state when there is no valid Last Will and Testament, making the probate process most costly for intestate estates.

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Q. Are the duties of the personal representative any different than those of the executor?

A. The personal representative appointed by the court has the same responsibilities as an executor named in a will.

The personal representative  must inventory the decedent’s estate and determine if the estate has probate assets.   If the estate has probate assets, the personal representative must determine whether to follow the state rules for small estate or a court supervised formal probate procedure.

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8 thoughts on “Probate Without a Will

  1. david

    Above your definitions of intestate and testate are virutally the same, one says the decendant “did not”, the other says “does not” leave a valid will. I have copied the text here:
    An intestate estate is the procedure used when the decedent did not leave a valid Will.

    A testate estate is used when the decedent does not leave a a valid Will.

    Reply
  2. Hafeez Uqdah

    My grandma died and left me her property , but she did not have a will, so i have been paiding the taxies on this property for over 15 years , how do i get legal papers on the property thats in probate ?

    Reply
    1. Minna Vallentine

      If your grandmother died without a will, how did your grandmother document her wishes to have you inherit her property?

      Hafeez: Do you have a copy of the deed? Did you own the property with your grandmother….or was your grandmother the only property owner listed on the deed? Since your grandmother died without a will, unless your grandmother named you as a joint tenant for the property, you need some kind of written proof that she left the property to you. Without that, I’m not sure what you can do. If your name is on the deed as a joint tenant, you should be able to get a copy of that deed at the county recorder’s office in the county where your grandmother lived.

      Reply
  3. Rod

    My mother died 12 yrs ago and left the house to my brother and I. My brother recently died and (supposedly) has no will. My father has come in to claim his share of the property and personal effects. My question to you is, can he do this if the house is only deeded to my mom’s name, and since my brother has died , do I now become the sole owner of the house and all of its contents?

    Reply
    1. Minna Vallentine

      It depends on the intestate laws in your state. If someone dies without a will, the state has a specific order in which the assets pass to family members. I would suggest you check the statutes in your state so you can be sure of your legal standing.

      Reply
  4. Rosalind Fernando

    My brother recently passed away and did not leave any will. He passed away in Bangkok, Thailand. He was not married or had any children. He has 5 other siblings. I am the youngest sibling and the only one that kept contact with him and I am wanting to be the executor of the accounts he has left behind. The accounts I am sure done not total more than 50 thousand. His legal address in the US is in Las Vegas. How do I file to become the executor?

    Reply
    1. Kathy Lane Post author

      You can’t be your brother’s executor, because your brother did not make a will. The term “executor”is the legal term for someone named in a will. Since your brother died without a will, you want the probate court to appoint you as the administrator of your brother’s estate.

      Since your brother lived in Las Vegas, Nevada, you should contact an estate planning lawyer in Las Vegas. You will need to open a probate case and the probate court will appoint someone to take charge of your brother’s estate. In the meantime, if your brother had any life insurance policies or 401(k)/IRA retirement accounts, contact the life insurance company and the financial institution managing the retirement accounts. If the beneficiary forms name you or your siblings as a beneficiary, you can immediately claim your inheritance without involving a lawyers.

      If your brother owned a house or a bank account, look at the title. If the title is only in his name, you should contact a lawyer in Las Vegas. Property titled only in your brother’s name are probate assets. The lawyer can explain what types of paperwork is required to transfer probate property to your brother’s beneficiaries.

      Since you brother died without a will, state intestate laws in Nevada will determine who inherits your brother’s probate assets. If your father or mother are not living, then your brother’s probate estate will be divided in equal shares to the brothers and sisters of the decedent. If your father or mother are living, they will inherit your brother’s probate estate.

      Make list of your brother’s assets. Identify any that may have a beneficiary – life insurance, retirement accounts. The beneficiaries can immediately claim property with a named beneficiary. Contact a probate lawyer in Clark County Nevada – he will help you know what to do next.

      Reply

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