what to do when someone dies without a will do you need to get a lawyer

Consult an estate attorney. It’s possible to settle your spouse’s estate without a lawyer, but because this can sometimes turn into a complicated situation and involve many beneficiaries, it’s best to work with a specialist, especially if their estate is valued at $50,000 or more. Contact the executor of your spouse’s estate.

Full Answer

What do you do when someone dies without a will?

When someone dies without a will, their assets are frozen until the court system combs through every detail of their estate. The court then applies its state intestacy laws to make a decision regarding where a person’s possessions will be allocated This process can be time-consuming and exhausting for the surviving family members — but is easily avoidable.

When to talk to a lawyer about not having a will?

If no will or will substitutes exist, an interested party must open a probate estate. The party must petition for an appointment as personal representative -- sometimes called an estate administrator -- in the probate court of the county where the decedent resided. Court filing fees range around $200.

Is it possible to handle an estate without a lawyer?

Do I need a lawyer to make a will?

What is it called when someone dies without a will?

When someone dies without a will, it’s called dying “intestate.”

Who to consult with about a legal case?

You may want to consult with an attorney in your area to find out more about the legal situation.

Who can inherit under intestate law?

Usually, only spouses, registered domestic partners, and blood relatives can inherit under intestate laws. Unmarried partners, friends, and charities get nothing.

Who splits an estate?

Usually, the estate will be split between the surviving spouse and children.

What is probate court?

Probate is a legal process in which the probate court uses the laws of the state to decide who inherits what.

What is a will?

A will is a simple, inexpensive legal document that states someone’s final wishes. It’s used by the county court to make sure those wishes are carried out. Some people also use a will to: Name an executor to carry out the terms of the will. Name someone to manage property left to minor children.

Do older adults need a will?

If your older adult wants to be sure that their assets and property will be given to certain people or organizations after they pass away, they must have a will.

What is it called when someone dies without a will?

When someone dies without a will or other estate planning direction, this is legally known as dying "intestate.". Intestate estates are distributed to heirs according to state statutes. Spouses and children are first in line to inherit intestate estates. If there is no spouse or children, then next of kin inherit.

What happens if no will substitutes exist?

If no will or will substitutes exist, an interested party must open a probate estate. The party must petition for an appointment as personal representative -- sometimes called an estate administrator -- in the probate court of the county where the decedent resided. Court filing fees range around $200. Once the court appoints a personal representative, she must publish notice of the proceedings in a local newspaper so estate creditors can make claims for payment. She also must provide notice of the court proceedings to all known heirs.

How does a personal representative close an estate?

A personal representative typically closes an intestate estate by submitting a certificate of closure with the court. The personal representative must ensure all applicable court fees are paid. She must also file a final accounting with the court. The accounting details all bills paid from the estate and all property conveyed to its heirs.

What happens when a beneficiary leaves no will?

When a decedent leaves no will, his heirs should ascertain if he used any will substitutes.

What happens if there is no spouse?

If there is no spouse or children, then next of kin inherit. An intestate estate must pass through probate court before it is distributed to heirs. If there are no relatives, an intestate estate passes to the state.

Can you put a will in lieu of a will?

Sometimes people use will substitutes in lieu of wills. These are estate planning techniques that avoid probate. For example, a person may put her property in a trust in lieu of a will, and when she dies, a trustee will distribute the property according to the terms of the trust.

What happens to property when a person dies?

Every state has laws that direct what happens to property when someone dies without a valid will and the property was not left in some other way (such as in a living trust). Generally, only spouses, registered domestic partners, and blood relatives inherit under intestate succession laws; unmarried partners, friends, and charities get nothing. If the deceased person was married, the surviving spouse usually gets the largest share. If there are no children, the surviving spouse often receives all the property. More distant relatives inherit only if there is no surviving spouse and if there are no children. In the rare event that no relatives can be found, the state takes the assets.

How to choose executor of estate?

When there is no will to name an executor, state law provides a list of people who are eligible to fill the role. If a probate court proceeding is necessary, the court will choose someone based on that priority list. Most states make the surviving spouse or registered domestic partner, if any, the first choice. Adult children are usually next on the list, followed by other family members. (If you've been chosen to serve as executor of an estate, learn how to decide whether the job is right for you in Nolo's article Should You Accept the Job of Executor to Settle an Estate?)

Is a surviving spouse considered a surviving spouse?

Legal separation or pending divorce. If the couple had separated before one spouse died, or if one person had begun divorce proceedings, a judge may have to rule on whether or not the surviving member of the couple is considered a surviving spouse.

Who inherits property in intestate succession?

Generally, only spouses, registered domestic partners, and blood relatives inherit under intestate succession laws; unmarried partners, friends, and charities get nothing. If the deceased person was married, the surviving spouse usually gets the largest share. If there are no children, the surviving spouse often receives all the property.

Who is the first choice in probate?

Most states make the surviving spouse or registered domestic partner, if any, the first choice. Adult children are usually next on the list, followed by other family members.

How to find out who inherits other assets?

To find out who inherits other assets -- generally, solely owned property for which no beneficiary has been formally named, such as a house -- you'll need to consult state law. Every state has "intestate succession" laws that parcel out property to the deceased person's closest relatives. More on this below.

Can an adopted child inherit from their parents?

In all states, in the absence of a will or other estate plan, legally adopted children inherit from their adoptive parents just as biological children do.

What happens when you die without a will?

When you die without a will, this is known as dying intestate. Each state has established guidelines on how property and other assets will be distributed when a person dies intestate. These guidelines are known as state “intestate succession” laws. These laws control how your estate in handled in probate court.

How to start probate without a will?

If you want to start probate without a will by serving as the administrator, you typically start by filing a petition in probate court. Here’s a step-by-step look at how to get the process going. Step 1: Review the deceased person’s assets to see if the estate qualifies for a small estate probate exemption. You will need to establish a value ...

How long does it take for a family member to file a claim against an estate?

This serves as a Notice to all creditors to file their claims against the estate. Creditors usually have four months to file their claims. Step 6: Your petition is granted unless another more suitable representative comes forward.

Who is considered an heir to an estate?

Generally, your heirs include your surviving spouse, siblings, aunts and uncles, nieces, nephews, and distant relatives. The order of who takes first in intestacy is governed by state law. When no relatives can be found, the entire estate goes to the state.

What is the primary job of probate court?

Its primary job is to oversee the process that lawfully resolves all debts, taxes and financial affairs of people who die. Probate court also ensures the remaining assets go to the proper people. Probate court selects the estate administrator when you die without a will. Generally the surviving spouse is appointed.

Does a title transfer need to go through probate?

Transfers Title: Unless real property is held in a trust or some form of joint ownership, it typically needs to go through probate to transfer the name on the title.

Does probate settle disputes over property?

Resolves Conflicting Claims to Property: Inheriting property doesn’t always bring out the best in people. Probate doesn’t guarantee heirs won’t litigate disputes over property. But intestate succession laws applied by the court to distribute property can give closure to some disputes. Generally, your heirs include your surviving spouse, siblings, aunts and uncles, nieces, nephews, and distant relatives. The order of who takes first in intestacy is governed by state law. When no relatives can be found, the entire estate goes to the state.

What happens if you die without a will?

When this happens, state intestacy laws and the courts will decide the fate of all the assets in an estate. For a more detailed and in-depth breakdown, you can read our article on dying without a Will .

What happens if a will is not found?

If no Estate Planning documents are ever located, and/or if guardianship hasn’t been established, the courts may need to get involved to make a more final, long-term decision.

What is the purpose of estate planning?

Distribute assets - The main purpose of Estate Planning is to distribute assets, so once you’re at this stage, and all the debts and any taxes the estate owes have been settled, you’ll finally be able to make sure all remaining assets go to the appropriate beneficiaries as dictated by the Will or Trust.

What happens if there is no estate plan?

Determine the need for probate - If there is no Estate Plan at all, or if there is just a Will (but no Trust), the estate will go through probate. Probate is simply the process of a court validating a Will and then distributing assets. If there is a Trust, probate can be skipped entirely.

What to do if your loved one has dependents?

If your loved one had any dependents (minor children or adults who cannot take care of themselves) or pets, you need to find their Estate Plans quickly to see what , if any, provisions were set up for guardianship .

How to find a funeral director?

Finding a funeral director - if the deceased was religious, a pastor, priest or other clergy member can help with this; if he or she was not of an organized faith, you can reach out to an agnostic or non-denominational minister, or ask a friend or family member to conduct the service.

What to do if you die from a mortgage?

Banks/Mortgage companies - Though this one may require some digging to find out who you should contact, it’s important to let mortgage companies and banks know of the death. If you’re not sure which bank to contact or who holds the mortgage, looking in a safety deposit box, a safe, a home office, a file cabinet or a desk is a good place to start.

What to do if your relative dies at home?

But if your relative died at home, especially if it was unexpected, you'll need to get a medical professional to declare her dead. To do this, call 911 soon after she passes and have her transported to an emergency room where she can be declared dead and moved to a funeral home.

How to get a death certificate if someone dies at home?

But if your relative died at home, especially if it was unexpected, you'll need to get a medical professional to declare her dead. To do this, call 911 soon after she passes and have her transported to an emergency room where she can be declared dead and moved to a funeral home. If your family member died at home under hospice care, a hospice nurse can declare him dead. Without a declaration of death, you can't plan a funeral much less handle the deceased's legal affairs.

Do you have to stop Social Security if you die?

• The Social Security Administration: If the deceased was receiving Social Security benefits, you need to stop the checks. Some family members may be eligible for death benefits from Social Security. Generally, funeral directors report deaths to the Social Security Administration, but, ultimately, it's the survivors’ responsibility to tell the SSA. Contact your local SSA office to do so. The agency will let Medicaid know that your loved one died.

Why share a list with the executor?

Share the list with the executor so that important expenses like the mortgage, taxes and utilities are taken care of while the estate is settled.

What is the probate process?

Laws vary by state, but the probate process usually starts with an inventory of all assets (personal property, bank accounts, house, car, brokerage account, personal property, furniture, jewelry, etc.), which will need to be filed in the court. For the physical items in the household, Harbison suggests hiring an appraiser.

Where do you have to go to probate?

Probate is the legal process of executing a will. You'll need to do this at a county or city probate court office. Probate court makes sure that the person's debts and liabilities are paid and that the remaining assets are transferred to the beneficiaries.

What to do if your loved one has a CPA?

If your loved one had a CPA, contact her ; if not, hire one. The estate may have to file a tax return, and a final tax return will need to be filed on the deceased's behalf. “Getting the taxes right is an important part of this,” Harbison says.

What to do if your spouse doesn't write a will?

If they didn’t write a will, ask close family members if your spouse ever had a discussion with them about their final wishes. An attorney who helped them prepare other end-of-life documents, such as a power of attorney (POA), trust, or DNR, may also have a document with this information.

What to do after spouse dies?

Immediately After. Here is what to do immediately after your spouse dies: Get a legal pronouncement of death. If your partner dies in a hospital, a nursing home, an assisted living facility, or hospice, a doctor or nurse will declare a time of death.

What to do if there is no doctor present?

If there is no doctor, nurse, or qualified medical professional present, call 911 to get a legal pronouncement of death, making sure you have their DNR for the paramedics. Your loved one may be taken to the hospital for the declaration of death to be made.

How to tell your family that your spouse has died?

Tell your family members and friends your spouse has died. Start with those who were closest to you and your husband or wife. They can help you let others know so you don’t have to take on this task by yourself. They’ll also be able to help you with other things you’ll need to do in the coming days and weeks, including making funeral arrangements. If you plan on making an announcement on social media, wait a few days so you can personally contact as many people as possible .

What to do if your spouse is an organ donor?

If your spouse is an organ donor and they passed away at home not under the care of a physician, call a local hospital to take care of this process. If they died under the care of a hospice nurse or paramedic, they should be able to connect you with the appropriate authority for organ donation.

What to do if a paramedic pronounces death?

Depending on where you live, the paramedic will pronounce the death or your loved one will be transported to a hospital for a doctor or nurse to make the declaration. If a paramedic pronounced the death and there won’t be an autopsy, call the funeral home, crematorium, or mortuary you plan to work with.

What to do with Social Security when spouse dies?

What to do with Social Security when a spouse dies. Call the SSA to notify them of the death. Any Social Security payments will be stopped, but as the surviving spouse, you may receive a $255 death benefit. GET MY FREE BURIAL INSURANCE QUOTE Most people qualify and no medical exam is required!

Do you have to give consent to a lawyer to text you?

You are not required to provide consent as a condition of service. Attorneys have the option, but are not required, to send text messages to you. You will receive up to 2 messages per week from Martindale-Nolo. Frequency from attorney may vary.

Does an estate have a business?

The estate doesn't contain a business or other complicated asset. Managing, appraising, and selling a business are all tasks that require some expertise and experience. You'll probably want expert advice.

Does an estate have enough money to pay debts?

The estate has enough assets to pay its debts. In this case, you don't have to worry about paying legitimate debts—there will still be money left over for the inheritors. But if it looks like there won't be enough money in the estate to pay debts and taxes, get advice before you pay any creditors.

Is probate easier in states?

Probate is easier in states that have adopted the Uniform Probate Code (a set of laws designed to streamline probate) or have simplified their own procedures. The estate doesn't contain a business or other complicated asset.

Do you need probate if you have a trust?

But you won't need probate if all estate assets are held in joint ownership, payable-on-death ownership, or a living trust, or if they pass through the terms of a contract (like retirement accounts or life insurance proceeds). The estate qualifies for simple "small estate" procedures.

Can you transfer property without probate?

Most or all of the deceased person's property can be transferred without probate. The best-case scenario is that you don't need to go to probate court, because assets can be transferred without it. This depends on the planning the deceased person did before death—you can't affect it now.

Can you probate an estate without a lawyer?

When You Can Probate an Estate Without a Lawyer. Here are some circumstances that make you a good candidate for handling the estate without a professional at your side. Not every one of them needs to apply to your situation—but the more that do, the easier time you will have.