How Does a Probate Work When There Is No Will

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A will’s job is to legally protect the assets and wishes of a person who passes away. The probate process ensures that the will is legal and carries out the way its owner intended.

With or without a will in place, deciding how to distribute assets after a loved one passes away falls on the probate court. However, because a will can help speed up this process, probate without a will can sometimes take more time and be more complicated than probate with a will.

Probate Without a Will

Dying without a will in place requires tweaks in the regular probate process that would handle the legalities of a will. Each state has laws known as intestate succession laws that govern the probate process when there is no will involved.

Definition Of Next Of Kin

In Washington State, next of kin are defined as the surviving blood relatives nearest the decedent. They are spouses, children, parents, siblings, grandparents, and aunts and uncles.

Benefits of Probate When There’s No Will

It’s not uncommon for family members of the deceased to want to avoid probate without a will in place. The thought of going through a probate court can be daunting. But you might also wonder, “How do I deal with an estate without a will?” There are several benefits of allowing the probate process to help you through this challenging time.

First, probate can ease some of the responsibilities that you, as a family, are already shouldering. You may have medical bills to settle and funeral arrangements to make. An experienced probate lawyer can walk you through any questions you have and take care of legalities that you shouldn’t need to worry about.

Probate can also help families work through disputes that may arise during the settlement of assets. When there are several claims to the deceased’s assets, probate can work through conflicts by basing decisions on state estate settlement laws.

Finally, probate can help a family with complicated matters that sometimes result from a loved one’s death.

Creditors, for example, can come after other family members to settle a debt. Probate can work with creditors to pay the debt from the assets of the deceased and reduce the amount of time a creditor can stake a claim on the debt. Probate can also settle ownership issues related to vehicles, real estate, and businesses.

What’s the Role of the Court?

Probate court ensures that each step in the probate process is carried out legally and maintains the best interests of the deceased, their assets, and their family members. Probate court exists to assist the family in distributing assets to keep the probate process as uncomplicated as possible.

The court also must decide who has power of attorney after death if there is no will. Most states, including Washington, appoint the deceased’s spouse as power of attorney, followed by a child of the deceased if no spouse exists. In other cases, the court may appoint a close family member.

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Can I File A Probate Myself?

You can! For most cases, you don’t need a lawyer to probate your will. Since anyone has access to the court system, you can probate your will without a lawyer. It’s okay to do your probate yourself and hire a lawyer for very specific needs or questions that come up in the process.

A lawyer is not required to probate a will in most cases—anyone can interact with the courts on their own, and you can probate without an attorney. Regardless, it is considered a good idea to consult a lawyer as the process can be complicated, and their expertise might be necessary.

Can You Fight A Will In Court?

Any interested person can file a petition contesting a will. If the will is probated or rejected by probate, it may be contested on admission or rejection based on the court. This is called a “will contest.”

You must file the petition within four months of the will being accepted or rejected. The PR of the will and estate must be served the filing notice within 90 days of the acceptance or rejection. Upon the commencement of the petition filing, the contest is considered “commenced.”

Do I Need A Death Certificate To File A Will?

Washington State law does not require the decedent’s Death Certificate to begin a probate, though some judges will want to review one. However, it is practical to have the death certificate to probate a will, as the death certificate will be required for the testator through the process and it will make it easier to navigate through court proceedings.

Can an Estate be Settled Without Probate?

When an estate qualifies as a “simple” estate, the state allows you to skip the probate process. However, a simple or small estate requires the total assets to be less than $100,000—skipping formal probate and settling can be simpler in this matter, without the courts.

Starting Probate Without a Will

You have one of two pathways to start probate without a will. One way is to begin the process yourself by filing a petition with the probate court within the county in which the deceased lived. You’ll need to provide the death certificate and fill out applicable paperwork the court requires. You also need to notify the descendants of the deceased of the petition and court hearing.

Alternatively, you can contact a probate lawyer to walk you through the process and help you get started. A lawyer experienced in the probate process can be helpful to lean on when you get confused or want to understand your options better.

Appointing an Executor Without a Will

It’s possible to appoint an executor without a will by determining appointment priority, contacting the court in the county of the deceased, filing a petition, attending a probate hearing and securing a probate bond. State law appoints an executor based on a familial priority list.

Testate Estate vs Intestate Estate

A testate estate is one that has a legal, valid will. An intestate estate is one that does not have a legal, valid will. Some intestate estates may have a personal will from the deceased that has never been legalized and may not stand in probate court. For this guide’s purposes, we are referring to intestate estates in which no legal will exists.

Benefits of Intestate Succession Law

The benefit of intestate succession law is to properly distribute the property of the decedent in a logical, organized, and correct fashion. Intestate succession law varies state by state, determining how property and assets are correctly distributed.

Appointing a Personal Representative

The court appoints the personal representative of an estate. However, the person who files to start the probate process is often the person who accepts the title of the personal representative and is willing to take on that responsibility.

If the court finds that individual not to be the best person for the task, the court will appoint another person. This individual is often a spouse or child of the deceased.

Do Heirs Have To Be Notified?

Yes. Beneficiaries named in a will must be notified once the will is accepted into probate. Probated wills are placed on public record, and as soon as the will’s validity is proven, the heirs have to be notified. 

Do I Need Probate if I Have Power of Attorney?

Power of attorney and probate are two different things. Even if you had power of attorney while someone was alive doesn’t have any affect on your status under probate after they pass away. The necessity of probate is determined by the deceased’s assets.

Who Has Power Of Attorney After Death If There Is No Will?

Power of attorney typically becomes invalid after a person’s death.

Because power of attorney (POA) is a legal document granting authority to act on behalf of the person while they are alive, POA is null and void with no one to represent. Without a will or other estate-planning documents, the distribution of the deceased’s assets falls under intestate law. The handling of their estate also will generally follow these laws, which will specify how the estate should be distributed among any surviving heirs (after paying all outstanding debts). Surviving heirs typically include close family members, such as spouses, parents, siblings, and children.

Even if there is no will, an estate administrator is still responsible for seeing the distribution of assets and taking care of the estate of the deceased. A probate attorney can answer any questions you might have, such as how to start probate without a will.

Identifying the Heirs When There’s No Will

When there is no will in place, the probate court must determine who are rightful heirs to property and other assets of the deceased. Most states follow a similar order when deciding who are heirs to the deceased, including spouses, children, and parents.

When the court is unable to find heirs, the estate typically moves to the state to claim ownership.

Who Inherits When There’s No Will?

Intestate succession laws determine how to distribute assets among them when no will is in place. This varies between states. Generally, a spouse receives most of the assets and property, followed by children, parents, grandparents, and other blood relatives of the deceased.

Possible Disputes and Resolutions

The court appoints an administrator in the absence of a will, also called an executor or personal representative.

This is usually a close relative of the deceased, such as an adult child or spouse. If the court deems there is no suitable family member, they may appoint a state official, creditor, or third-party administrator to oversee the distribution of assets.

To resolve any possible disputes, the administrator will perform their duties similarly to a named executor. They will collect and manage assets, pay outstanding debts, distribute remaining assets, and anything else required according to state law. 

Handling probate in Washington State without a will can be challenging, which is why it’s important to retain the help and advice of a knowledgeable probate attorney, such as those at Skyview Law PLLC.

Challenges in Establishing Heirship

Establishing heirship can be one of the major challenges that pop up during the probate process. Without a formal document to outline the deceased’s wishes, it can become difficult to determine the rightful heirs and properly distribute assets. Establishing an heirship can be further complicated when factoring in multiple marriages, stepchildren, or extramarital children. When the deceased dies intestate, these issues often have to be resolved with the help of the state.

Disputes Among Family Members

Without a will, it’s very easy for disputes to emerge among surviving family members. Beneficiaries often desire their fair share of an estate, and without a will outlining the exact distribution of assets, it leads to contention and argument. 

Disagreements will arise from differing interpretations of the deceased’s oral wishes—meaning that arguments tend to skew toward perception and hearsay. Beneficiaries will bring up personal entitlements and perceived fairness, which can lead to damaged relationships and protracted court battles.

Legal Mediation and Resolution Processes

When disputes arise, any involved parties may turn to resolution processes or legal mediation. These exist to resolve disputes out of court, typically aided by a neutral third party, to reduce expensive court costs and expedite a resolution. In the case of these processes failing, the disputes might end up in court and become costly. 

Handling Bills During Probate

Before assets can be distributed to beneficiaries, debts, and taxes must be paid to creditors and the government. Creditors can continue to submit claims to the deceased person, and most of these are informal—as in, ordinary bills. Formal and informal claims are forwarded to the executor of the estate, who has the authority to pay these bills as they come in and eliminate any debts within the estate. In most cases, the executor consolidates all liquid assets of the deceased into a single estate checking account.

During probate, it is required that the executor publish a notice in a local newspaper so that creditors can submit formal written claims. Most states give creditors four to six months to submit their claims, and any that don’t meet the deadline does not have to be paid. Creditors can appeal any refusal of the executor to pay a formal claim.

Some estates might not have a lot of liquid assets, such as cash or assets that can be converted to cash. The executor might have to sell other assets in order to raise the cash necessary to pay bills. This can be extremely complicated as the executor still has a legal duty to be fair to all beneficiaries—it’s not fair to sell most of the assets that might have gone to one beneficiary and to leave behind assets for another. The executor will have to work out a system that accurately and fairly divides the estate, and this is one moment of many where the advice of a lawyer will come in handy and protect the executor from legal troubles down the line. It’s best to protect everyone’s interests up front, as challenging as that might be.

If There’s Not Enough Money to Pay All the Debts

In some cases, the debts and taxes accrued by an estate will be greater than the assets. If there are more debts than assets, the estate is “insolvent.” The state will set out a priority list to follow, and if you have the advice of an attorney they will help you weed through which debts are the most necessary. Don’t mistakenly pay out low-priority creditors only to find yourself personally liable for more important amounts.

Distributing the Estate Assets

It’s the responsibility of the probate court to distribute the estate assets of the deceased. The court will align this process with state law, considering any family members who may have ownership of the assets.

You might wonder what happens if you don’t do probate and there are assets to distribute? All states have laws that govern the distribution of estate assets with no will in place. For example, Washington estate division laws state that assets partly owned by a spouse or domestic partner must first go to them, followed by children, parents, grandparents, or other relatives.

Concluding the Probate Process

The probate process when there is no will culminates with a court order that details heirs and distribution of assets. This is a legal order that the family must follow and can use in court to settle any future disputes over the estate. Once the personal representative distributes all property, the court closes the case with a final order.

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Jarrod Hays is the founder of Skyview Law. He is licensed to practice law in Washington State and the Western District of Washington State Federal Court.

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