Probate Without A Will

What Happens When Someone Dies Without Leaving A Valid Will?

If someone dies intestate, that is, without leaving a valid will, his/her estate must be subjected to a probate process to allow the transfer of the property’s legal title to the deceased person’s heirs.

The probate process is essentially a set of rules under the state probate law that stipulate how assets or property can be disposed of when someone dies intestate. It’s a legal process that is usually presided over by a probate law court. It primarily involves the appointment of an administrator, identification of heirs as well as the distribution of property.

The actual probate process and preparation of the estate

The probate without a will process officially commences when a personal representative/ administrator is appointed to receive any and all legal claims regarding the estate and to handle payment of creditors as well as management of any other expenses that the estate owes to third parties.

There are certain expenses that an administrator has to settle before the distribution of the estate. They include; judgment(s) against the estate, administrative fees, unpaid bills, and outstanding loans, among others.

Identification of heirs

The next step involves the identification of heirs. The applicable probate laws are applied in the identification of heirs. Generally, parties who are automatically considered as heirs are surviving spouses, parents, and children.

If a court of law fails to identify heirs, the state acquires the deceased person’s property by default.

Distribution of the estate

Distribution of the estate can only be done after necessary expenses are offset and heirs are appropriately identified. The probate court of law is responsible for identifying assets/ property that should be distributed as well as how they will be distributed.

The distribution of certain types of property is automatic, even if someone dies without leaving a will. For instance, if the deceased owned a bank account, vehicle or land jointly with another party who is left behind, the party who remains alive automatically inherits the property.

Rules that determine how much every heir is entitled to inherit from the estate of a person who dies intestate vary from one state to another. However, in most legal jurisdictions, the probate without a will process usually involves distribution of property among the deceased person’s children and surviving spouse(s).

For instance, if the deceased was officially married but had no children, the surviving spouse is entitled to inherit all matrimonial property that was jointly owned by both. If the marriage brought forth children and property wasn’t jointly owned, the surviving spouse is entitled to inherit a fraction of the property, whereas the remaining fractions are distributed to the deceased person’s children as well as parents.

If the deceased was unmarried at the time of his/her death, the estate is distributed in accordance with priorities outlined in the state’s probate code.


Disclaimer: This article is intended to provide a general summary of laws in the State of California and should not be construed as a legal opinion nor a complete legal analysis of the subject matter. Noelle Minto is an attorney at NM Law, APC in Tustin, California, a law firm specializing in Trusts & Estates and Business Transactions.

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