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.
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.
- What is the difference between a testate estate and an intestate estate?
- Are the duties of a personal representative any different than those of an executor?
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.
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.
