Probate is the court proceeding where a will is verified, and an estate is administered according to the terms of the will. Probate is also used where no will exists, in which case an estate will be administered under the terms of state law, this is known as “intestate.” The process includes the collection of assets, the liquidation of liabilities, the payment of taxes, and the distribution of property to heirs. Our lawyers provide representation in both probate and estate administration. Each state requires probate as this process allows the court to check for potential fraud in a person’s last will and testament and ensure that the assets within a will are properly distributed. If someone passes away without a will, the probate court must first appoint a personal representative—this representative performs the same tasks that an executor does when a valid will is in place.
Responsibilities of a Personal Representative
A personal representative is in charge of administrating your probate estate. Personal representatives are named in a person’s will. Most individuals also name a substitute personal representative in their will. This is important in case the person they name cannot serve for any reason. If you do not have a will, a family member or other interested party must petition the court for appointment as the personal representative. Preference is given to certain family members beginning with the surviving spouse and children.
The responsibilities and duties of a personal representative can be overwhelming. This is especially the case of large estates, estates that involve probate litigation, or estates in which a family member plans to contest the will. Our DC, Maryland, and Virginia probate lawyers assist personal representatives in fulfilling their duties and responsibilities, including providing legal advice, monitoring deadlines, completing forms, and filing documents with the court.
After appointing a personal representative, the probate court will have to appraise the deceased person’s property, find creditors and beneficiaries, and decide how the assets will be distributed among the beneficiaries. As described, probate with a valid will and probate without a valid will is drastically different. However, in general, each probate case typically includes a few specific actions.
Starting Probate Without a Will
Below are specific steps you should take if you are trying to close someone’s estate who died without a will.
Step 1
The first thing you should do when looking to close an estate is to review the deceased person’s assets. This should include all known real estate, financial accounts, vehicles, cash, and other personal property that the deceased person owned. Once you have an account of the person’s assets, make a list that has corresponding values for each of the assets and a final tally that lists the total value of the estate. The reason for this is that each state has different small estate probate exemptions. If your estate falls under the small estate exemption, you will not need to go through probate.
Step 2
After you compile a list of the person’s assets and if these assets do not qualify for the small estate probate exemption, you need to determine which county you will file probate in. You will typically choose the county where the person lived or owned a home.
Step 3
Once you have the assets and know where to file probate, you will go to the local courthouse with a certified copy of the death certificate and request the necessary documentation to file a Petition for Letters of Administration. This petition, if the court grants you the position, makes you the personal representative of the estate.
Step 4
For the court to grant your petition, you must provide the names and addresses of all the decedents living relatives. This shows the court that you can fulfill the role of the personal representative.
Step 5
If the court grants your petition to be the personal representative, you must let every family member, creditor, or other interested party know that the estate is being petitioned for probate. To do this, you must publish an advertisement in local newspapers or other mediums. This way creditors have ample time to file a claim against the estate. Additionally, you will have to send a letter saying that the estate is going through probate. You must send this letter to every possible beneficiary of the estate.
Step 6
If you properly complete the previous five steps, the court should grant your petition. However, if a more suitable personal representative comes forward, they may take over.
State Specific Intestacy Laws
Below is a brief overview of the District of Columbia, Maryland, and Virginia’s intestacy succession laws. This is not a comprehensive list. However, this overview will give you an idea of what percentage of someone’s estate you are entitled to if they pass away without a will.
District of Columbia Intestate Laws
In the District of Columbia, if the decedent has children but no spouse, the children inherit the entirety of the person’s estate. If the decedent has a spouse but no living parents or children, the spouse will inherit all the assets. However, if the decedent has a spouse with which they have shared descendants, the spouse will receive two-thirds of the property and the remaining assets will be split between the descendants. However, if the spouse has descendants of their own along with descendants with the deceased, the spouse receives half of the estate while the remaining assets go to the deceased’s descendants.
Additionally, if the decedent has a spouse and parents but no descendants, the spouse receives three-fourths of the assets while the parents receive the remaining balance. Furthermore, if the decedent has no spouse or descendants, the parents will inherit all the assets. Similarly, if the decedent has no spouse, descendants, or parents, the decedent’s siblings will receive all of the estate.
Maryland Intestate Laws
In Maryland, if the decedent has children but no spouse, the children inherit the entirety of the person’s estate. If the decedent has a spouse but no living parents of children, the spouse will inherit all the assets. However, if the decedent has both a spouse and children that are under the age of 18, the spouse receives half of the assets while the remaining assets are split between the children. Furthermore, if the decedent has a living spouse, descendants, but no minor children, the spouse will receive $40,000 and half of the estate. The remaining assets are split between descendants. The same structure applies if the decedent has a spouse, living parents, but no descendants. In this scenario, the parents receive the remaining half of the estate just as the descendants would.
Additionally, if the decedent has parents but no spouse or descendants, the parents will inherit the entire estate. Finally, if the decedent has no spouse, descendants, or parents, the decedent’s siblings will inherit the entire estate.
Virginia Intestate Laws
If someone dies in Virginia and they have a spouse yet no children or descendants, the spouse will receive the decedent’s entire estate. However, if there are children or descendants, then one-third of the estate goes to the spouse and the remaining assets are split among the other persons. However, if no spouse, then the entire estate is split among the descendants. If no spouse, children, or descendants, then the estate goes to the person’s parents. If no parents or any of the other aforementioned relatives, the estate goes to the decedent’s siblings. The Virginia courts continue to go down the line of closest lineal ancestors or the descendants of such ancestors. If the decedent has no surviving family of any kind, then the assets within the person’s estate go to the Commonwealth of Virginia.
Benefits of Probate When There’s No Will
Probate is commonly portrayed as being costly, time-consuming, and something that should be avoided at all costs. These statements are partly true. However, in cases where the decedent does not have a will, probate offers a few key benefits.
- Probate Limits Creditor Claims. Creditors to the deceased person will have six months after the first publication of the Notice to Creditors to file claims against the estate. After this time, they cannot make a claim on the estate.
- Probate Helps to Resolve Multiple Claims to Property. State-specific intestate laws strictly govern the distribution process. Thus, spouses, children, parents, or other relatives have no say over who will receive which of the decedent’s assets. This portion of probate can be extremely useful to avoid family conflict and fraud.
- Probate Transfers Property Titles. When someone passes away and assigns their titled property such as real estate or vehicles, the beneficiary of these assets must have the title transferred to them. The reason for this is that the court needs to verify the will and the title. After this, the court will provide documentation so that the executor can transfer the assets to the beneficiaries.
Final Thoughts
Because each state has specific laws and procedures tied to probate, finding correct and relevant information is difficult. By hiring a probate attorney, you are enlisting someone with knowledge of the state-specific laws. Furthermore, you will also have someone on your side to help you deal with potential creditors. Finally, a probate attorney will be able to help you distribute the assets in the most tax-efficient way.
Finally, a probate attorney is helpful in assisting with marshaling and valuing all the estate assets, assisting with finishing the accounting, completing the estate tax returns (death tax returns), and overseeing the asset distribution process. Most importantly, however, a probate attorney can asset the personal representative with preparing the initial pleadings to open the estate. A probate attorney can also help to guide the personal representative through their fiduciary obligations and important deadlines.
Contact our law office for more information
For more information on probate without a will, contact Antonoplos & Associates at 202-803-5676. You can also directly schedule a consultation with one of our attorneys.