Settling an estate without a will means the estate is generally administered under your state’s intestacy laws rather than according to the deceased’s written wishes. In most cases, the probate court appoints an administrator to gather assets, pay debts and taxes, and distribute the remaining property to the deceased’s legal heirs according to state law.
However, because families sometimes discover a will after initially believing none exists, it is important to make every reasonable effort to locate one before proceeding. This guide explains how to settle an estate without a will, who inherits under intestate succession, when probate is required, whether you need an attorney, and the steps to complete the estate administration process with confidence.
Before settling an estate without a will, it is critical to exhaust all options to locate one. A will serves as a legal guide. It names the executor, lists the heirs, and explains how property should be distributed.
Sometimes, families believe there is no will when, in fact, it simply hasn’t been found yet. Here are some key steps you should take:
Make sure you check these places before moving forward. Accepting that a will doesn’t exist when one actually does could result in the wrong people inheriting the estate.
TO FIND A MISSING WILLThe U.S. Will RegistryEstablished 1997START HERE →
If you have truly done everything you can and still cannot find a will, the estate is considered intestate. This means the court will handle it based on state intestacy laws. These laws vary by state, but they generally follow a family hierarchy.
In most states, the estate is divided among the closest family members. Typically, this order is followed:
Spouse and children
If the person was married with children, both may share the estate.
Parents
If there is no spouse or children, the estate may go to the parents.
Siblings
If no parents are living, siblings may inherit.
Extended family
Nieces, nephews, grandparents, and cousins may be next in line.
If no living relatives are found, the estate could eventually go to the state. This is called escheat.
To read in detail how the court guidelines determine what family members are able to inherit from an estate without a will, read: Intestate Succession – Settling an Estate Without a Will
Once you have confirmed that no will exists, you will need to start the legal process to settle the estate. Here is a step-by-step guide to help you navigate the process.
The first step is to open a probate case in the county where the deceased lived. You will need to:
Unlike an executor named in a will, the court appoints an administrator for an intestate estate.
After the court appoints you as administrator, you must notify all known heirs. Additionally, you need to publish a notice to alert any creditors. This gives people the opportunity to claim debts or inheritance.
Next, make a complete list of the estate’s assets. This can include:
It’s important to secure these items to prevent loss or theft.
Before distributing anything to heirs, the estate’s debts and taxes must be paid. This may include:
If the estate doesn’t have enough to cover these debts, some assets may need to be sold.
After debts and taxes are paid, the remaining assets can be distributed. The court will guide you based on your state’s intestacy laws. You must follow this legal order even if you believe the deceased would have chosen differently.
In many cases, families wonder if they need to hire an attorney or go through the probate court. The answer depends on several factors, including the complexity of the estate and whether any family members disagree about how things should be handled.
If the estate is small, simple, and all family members agree on how to divide the assets, you may not need to hire an attorney. Many states offer small estate procedures that allow families to avoid formal probate. These are typically called small estate affidavits or summary administration. This option is available when:
However, even with a small estate, you may need court approval to access certain assets. For example, banks and financial institutions usually require legal documentation before they release funds. Most banks will not allow you to access a deceased person’s bank account without one of the following:
These documents prove that you have legal authority to handle the deceased person’s assets. Without them, the bank legally cannot release any funds to you.
Hiring an attorney becomes important when:
An attorney can guide you through state-specific laws and make sure you avoid costly mistakes. Legal help is especially useful if conflicts arise, creditors make claims, or someone threatens to contest the estate.
Experiencing this process may inspire you to take action on your own estate. Ultimately, creating a will is one of the most thoughtful things you can do for your family. It provides clear instructions and prevents confusion and conflict.
Fortunately, creating a will has never been easier. The U.S. Will Registry offers a FREE, legal online will program that anyone can use. It takes just minutes to complete, and you’ll have peace of mind knowing your wishes are documented.
To recap, settling an estate without a will starts with making every effort to find one. Check personal records, contact attorneys, and use services like The U.S. Will Registry. Only after exhausting all options should you proceed as if no will exists.
If you cannot find a will, you must open a probate case and follow your state’s intestacy laws. While the process can be challenging, following these steps can help you manage the estate with confidence.
Finally, consider taking action today to create your own will. Doing so protects your family from facing these same challenges in the future. It also ensures that your legacy lives on, just as you intend.
CREATE YOUR WILL TODAYIT’S FREE!The U.S. Will Registry▶ START YOUR FREE WILL
This article was prepared by estate planning researchers and reviewed by S. Miller and staff. With more than 25 years of experience in estate planning documentation and probate processes, our editorial oversight ensures clarity and accuracy. This content is provided for informational purposes only and does not constitute legal advice.
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