Probate Without a Will: Understanding Your Options

June 1, 2024
Jennifer Nichols

While having a will or other estate plan in place is always ideal, the reality is that many people never get around to it. This can raise many questions for the surviving family members and sometimes lead to considerable conflict. Fortunately, you do not need to figure it all out on your own. Understanding your options is the first step. If you have a loved one who died without a will, an experienced probate attorney can help you find the way forward.

Traditional Probate

Probate is the court-supervised process for administering a decedent’s estate. It has a reputation for being time-consuming and expensive, but it can be navigated fairly efficiently if you know what to do. If your loved one died without a will, there are two options for traditional probate:

  1. Dependent administration: This refers to the full formal probate process that the court closely monitors. Dependent administration is typically used when the heirs cannot agree on who should administer the estate or when one of the heirs is a minor. The dependent administrator administers the estate subject to the approval of the court. Dependent administration is typically more expensive than independent administration because the processes involved in administering the estate require court action.
  2. Independent administration: Less formal than dependent administration, this process focuses primarily on ensuring all heirs are identified and represented before the court. The heirs agree to appoint one or more persons, usually one of the heirs, to serve as independent administrator to administer the estate.  While the independent administrator has to prepare an inventory of the estate assets, generally no further court action is required.

But Do You Need to Go to Probate?

Most people are surprised to learn that not every estate needs to go to probate. You may be able to avoid probate entirely if the decedent owned only non-probate property.

Non-probate property is property with a designated beneficiary. For example, payment of a life insurance policy to a named beneficiary would be considered non-probate property because the policy passed to the beneficiary outside of the probate process.  Another example is a multi-party bank account structured to pass to the survivor(s) of the account on the death of one of the parties or a bank account structured to pass as payable on death to one or more named beneficiaries.

Affidavit of Heirship

An affidavit of heirship is another way to avoid the probate process with regard to real property. However, it should generally only be used when the decedent owed no debts.  The affidavit needs to identify the decedent’s heirs and their share in the property and be signed by two disinterested witnesses with knowledge of the decedent’s heirs.  Once filed with the county clerk where the property is located, the Affidavit establishes chain of title of the property from the decedent to the heirs. Heirs should be aware, however, that creditors with claims against the property can intervene in the process.

Small Estate Affidavit

A small estate affidavit is a minimalized probate process for estates where the decedent dies without a will. To qualify, the estate must not include any real estate other than the homestead and be worth less than $75,000, not including the homestead.  The affidavit asserts these facts and identifies the heirs and is signed by the heirs and two disinterested witnesses with knowledge of the decedent’s heirs.  The small estates affidavit gets filed with the probate court and once approved by the court, a certified copy of the small estate affidavit and order approving the same can be presented to financial institutions holding the decedent’s funds to have the institutions distribute the funds to the heirs without further involvement from the court.

Contact J Nichols Law, PLLC if Your Loved One Died Without a Will

Navigating the probate process on your own isn’t easy, especially when your loved one passed away without a will. To get the help you need, contact J Nichols Law, PLLC, by calling 409-257-7878 today.