How to Claim an Inheritance with No Will

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methods

1Using Simplified Procedures

2Going through Probate

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Tips and Warnings

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References

When a relative dies without a will, the law of the state where that relative lived determine how the estate's assets are distributed through a process called intestate succession. Some assets, such as the proceeds of a life insurance policy or retirement account, can be distributed without going through the courts. For everything else, however, you typically must go through the probate courts to claim an inheritance without a will.

Steps

Method 1

Method 1 of 2:

Using Simplified Procedures

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   Determine your state's limits. Simplified procedures typically are available for smaller estates with assets below a certain threshold.

   • You typically can find out more about your state's simplified procedures by checking your state court's website. Information also is available on legal websites. For example, Nolo provides a summary of each state's law on simplified procedures for small estates at http://www.nolo.com/legal-encyclopedia/probate-shortcuts-in-your-state-31020.html.
   • For example, California residents can take advantage of simplified procedures if the estate is valued at $150,000 or less. However, in Connecticut the estate must be worth $40,000 or less.
   • In some states such as New York, the value of any real estate is excluded from the limit when determining whether the estate qualifies for simplified procedures.
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   Search for forms. Typically the courts provide basic forms for you to fill out if the estate qualifies for simplified procedures.

   • You can get the forms by contacting the clerk of court in the county where the deceased person lived. Some jurisdictions also may have these forms available online.
   • The form requires all beneficiaries to state under oath that no will exists and no debts are owed by the deceased person. You then must list all of the deceased person's assets and propose how they will be divided among the beneficiaries of the estate.
   • Depending on your state, you may need to file additional affidavits or sworn statements from other individuals who are not beneficiaries to the estate.
   • Unlike the full legal process for which an executor must be appointed, when you use simplified procedures you typically only need the agreement of all the deceased person's beneficiaries.
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   Consider consulting an attorney. Although the simplified process is designed so that you don't need an attorney, you may find an attorney's assistance beneficial in preparing the initial forms.

   • Although no particular legal expertise is typically required to fill out the forms, an attorney can make sure they are filled out correctly and that you've included all legally required information and documents.
   • If you're concerned about the cost of hiring an attorney, you might look into services from your local legal aid office. If there's a law school located nearby, you also may be able to find a law school clinic that provides free or reduced-cost services.
   • You also could find out if there's an experienced probate attorney willing to charge you a reduced rate simply to look over your documents after you've prepared them.
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   File your forms. Once you've completed your forms you must file them with the probate court clerk in the county where the deceased person lived.

   • The court may require these forms be accompanied by certain documents, such as a death certificate or a receipt for funeral expenses.
   • You will have to pay a filing fee to petition with the court for simplified administration of the deceased person's estate.
   • The state where the deceased person was a resident has control over all aspects of the person's estate, even if he or she had property elsewhere.
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   Receive your order from the probate court. Provided everything is in order, a probate court judge will issue an order for the estate's assets to be distributed as you set forth in your forms.

   • The benefit of being able to use simplified procedures – apart from not having to deal with lengthy and complex probate court proceedings – is that assets don't have to be distributed according to your state's laws of intestate succession, which typically would govern estates when the deceased person left no will.
   • Some states such as Illinois allow you to file the affidavit with the death certificate and avoid probate entirely. This means estates can be settled almost immediately using the simplified procedures. Involving the courts may mean it takes a few days or even a week or two.
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   Distribute the estate according to the order. The order has the effect of a deed and transfers ownership of the estate's assets to the beneficiary named in your petition.

   • If your petition disposed of any real property, you may have to record the order at the county recorder's office with the deed for the property. Similarly, the order does not complete the full legal transfer of some other property such as vehicles, but can be used as proof of a transfer of ownership when you get new registration and tags for the vehicle you inherited.
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Method 2

Method 2 of 2:

Going through Probate

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   Review your state's probate law. Each state has different procedures and requirements to distribute an estate when a person dies with no will.

   • You can find information about your state's law online by searching "[your state] probate law." General legal sites often have summaries of state probate law. For example, FindLaw has a directory of the probate law for all 50 states available at http://estate.findlaw.com/planning-an-estate/state-laws-estates-probate.html.
   • The court generally oversees the process of distributing the assets of an estate, regardless of whether the person leaves a will. However, if there is no will the state's probate law provides guidelines for who should inherit the person's assets.
   • Certain types of property don't have to go through probate. For example, if the person had a joint checking account with his or her spouse, all the money in that account would automatically become the property of the surviving spouse.
   • Likewise, funds from a life insurance policy, retirement plan, or other accounts will go directly to the named beneficiary without requiring a court process.
   • Other property that was held solely in the name of the deceased person must be distributed using the court probate process through intestate succession laws.
   • Keep in mind that if the deceased person had real property in another state, that property will be distributed according to the law of the state where the property is located.
   • Typically if a person dies without a will and has a surviving spouse, all of his or her property will go to that person. If there is no surviving spouse, the person's property goes to his or her children in equal shares.
   • If there is no surviving spouse and no surviving children, intestate succession laws can get quite complex. For example, if the deceased person's children have died but have children of their own, those children (the grandchildren of the deceased) may inherit at least a portion of what their parents would have, under certain circumstances.
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   Choose an executor. Your state's probate law includes a list of people who are eligible to be the executor of an estate with no will.

   • The state may call this person an administrator or a personal representative, but the function is the same regardless of the title.
   • Keep in mind, particularly if you are asked to be an executor, that the probate process can take months or even years depending on the size and complexity of the estate.
   • Typically, if someone dies without a will, the state appoints an executor or personal representative for the estate. Some states allow a close family member of the deceased, such as a surviving spouse or child, to request appointment.
   • The executor then must appear in court and be sworn in. The court gives the executor paperwork that enables him or her to legally act on the deceased person's behalf.
   • An executor receives any claims against the estate, pays all the estate's bills and debts, then distributes the remaining assets to the heirs.
   • If the person died leaving behind minor children, the court also may appoint a guardian for those children.
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   Publish a death notice. The first duty of the executor is to provide public notice of the person's death and the probate of his or her estate.

   • The death notice typically should be published in the legal notices section of the local newspaper where the deceased person lived.
   • In states where public notice is required, creditors or anyone else with a claim against the estate have a specified period of time – typically three or four months – to file their claim. After that, the estate is closed and no other claims against it will be accepted or paid.
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   Consider consulting an attorney. Because the probate process can be extremely complex and time-consuming, hiring an attorney may ensure the estate is distributed more efficiently.

   • An attorney also can ensure that you're complying with all the state's legal requirements and the executor's duties are being carried out correctly according to the letter of the law.
   • Keep in mind that attorney's fees typically are paid out of the estate, so if you are the executor you shouldn't worry that you personally can't afford attorney's fees.
   • If you are simply a beneficiary who believes you are entitled to an inheritance, you typically won't have any need to hire an attorney if the person died without a will. The estate will be distributed according to the law, so you would receive any inheritance to which you were legally entitled.
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   Inventory the estate. The executor must create an inventory of the debts and assets of the estate.

   • Typically this involves having real property and some personal property appraised so its value can be determined. For example, if the deceased person had antique furniture or collectible items, the executor would need to find someone with knowledge and experience in valuing those things to issue an appraisal of the value of those items.
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   Pay the estate's bills and taxes. Before you can claim an inheritance, the debts owed by the deceased must be paid out of the estate's assets.

   • Each state's probate law provides a priority list for paying the claims against an estate. Typically any estate administration costs, such as appraisal fees, court fees, and attorney's fees, are paid first.
     
   • After the estate administration and funeral costs are paid, other debts such as taxes, consumer debts and medical bills are paid.
   • If there aren't enough liquid assets such as cash available to pay the estate's bills, the executor typically must sell off real or personal property to cover the debts.
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   Distribute the remainder. After all bills and taxes are paid, any remaining assets will be distributed according to your state's intestate succession laws.

   • The first step in distributing the estate's assets is to identify the heirs. In many cases, a deceased person will leave behind easily identified heirs such as a surviving spouse, children, or parents.
   • In some cases heirs may be more difficult to find. If the executor is unable to find any heirs who are eligible to inherit under the state's probate law, ownership of the remaining assets of the deceased will transfer to the state by default.
   • If a close relative of yours has died without a will, you should make your presence known to the executor as soon as possible so he or she can keep you in mind when identifying possible heirs.
   • However, keep in mind that you can't claim an inheritance if there is someone more closely related to the deceased person, since their claim is prioritized under the law.
   • In many states, an heir must have survived the deceased person by several days before he or she can inherit any of the deceased person's property.
   • Obviously, if an heir died a few weeks after the deceased person, the inheritance would then become part of his or her estate to be distributed among his or her heirs.
   • Children born to unmarried parents generally can inherit from their mothers, but cannot inherit from their fathers absent some proof of relation – such as a certificate acknowledging paternity or a court order establishing paternity.
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Warnings

• Without a will, courts follow the probate law of the state in distributing the estate's assets, which may not be in accordance with the wishes of the deceased.
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• Close friends or unmarried partners typically cannot claim an inheritance if there is no will.
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