Next steps if there is no will

If someone dies without a will, it is called dying "intestate." This means that the laws of the state where the deceased person lived will decide how property (including bank accounts, investments, real estate, and personal items) is divided among family members.

1) Confirm that the deceased person died without a valid will.

If this is the case, the state will determine who gets the assets based on state laws. There are no exceptions to these state laws, even if it is different than what the person would have wanted.

2) Determine which assets will be divided based on state law.

All assets of someone who died without a will are included in this category, with the exceptions of:

  • Jointly owned property

    • For this, ownership will transfer immediately to the surviving owner(s) after a co-owner’s death. Examples include real estate.

  • Community property

    • Spouses are considered joint owners of all property in some states.

  • Property where a beneficiary has been chosen

    • If the deceased filled out a form (called a Payable on Death (POD) or Transfer on Death (TOD) form) to put a beneficiary on certain assets (like a car), these are not subject to government rules. Assets that often have a designated beneficiary include:

      • Bank accounts

      • Investment and retirement accounts

      • Life insurance

      • Vehicles

  • Trusts: A legal instrument that allows people to inherit without going through probate.

3) Determine the rules of the state where the deceased lived

If the deceased person owned real estate out of state, this property will be distributed according to the state where the property is located.

Go here to find your specific state and learn about its rules. If you want more information, you can see the direct legal text here.

4) Determine if you will need to go through probate.

To do so, follow these steps:

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Determine if you need to go through probate

To determine whether your estate qualifies as small, follow these steps.

Small estate next steps

Small estates do not need to file probate, which can simplify the process. Your next step will be to submit a signed affidavit to the court.

Prepare to go through the probate process

So that you can get an idea of the process ahead of time, here is a high-level overview of the steps in the probate process.

Find a lawyer

Probate lawyers can help executors or administrators of the estate navigate through the probate process.

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