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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6 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

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