To settle an estate without a will, you work through a court-supervised process called intestate probate: you identify which assets actually require probate, petition the local probate court to be appointed administrator, notify heirs and creditors, pay the estate’s debts and taxes, and then distribute whatever remains to the relatives your state’s intestacy statute names as heirs. The whole process typically runs one to three years, though many estates qualify for shortcuts that finish in weeks. Before you file anything with a court, work out whether the estate needs formal probate at all.
Start by Checking Whether Probate Is Even Needed
Families routinely assume that everything the deceased owned has to go through court. It usually doesn’t. Several major asset categories transfer automatically to survivors by contract or by operation of law, and they don’t care whether a will exists.
- Bank accounts, real estate, or other property titled as joint tenancy with right of survivorship or tenancy by the entirety pass directly to the surviving co-owner the moment the other owner dies.
- Retirement accounts (IRAs, 401(k)s, pensions) and life insurance policies pay out to the named beneficiary once they file a claim with the institution.
- Bank and brokerage accounts with payable-on-death or transfer-on-death designations work the same way: the named person presents a death certificate and collects.
- Anything held in a living trust passes according to the trust’s terms, outside probate entirely.
Only assets titled solely in the deceased person’s name, with no beneficiary and no survivorship arrangement, need probate. Inventory everything before you file. The estate may turn out to be much smaller than it first looked.
Small-Estate Affidavits
Every state offers some form of simplified procedure for smaller estates. The most common is a small estate affidavit: a sworn document stating under oath that the probate estate falls below a set dollar threshold and that the person signing is legally entitled to collect the property.
Thresholds vary widely. Some states cap the affidavit at $10,000; others allow it for estates up to $100,000 or more. Most states impose a waiting period after death, commonly 30 to 45 days, before the affidavit can be used. The form typically must state that no probate petition has been filed, that funeral expenses have been paid, and that the signer is a rightful heir.
In many states, no court involvement is required at all. You complete the affidavit, get it notarized, and present it directly to the bank or other institution holding the assets. Other states require you to file it with a court clerk or obtain a certificate first. Check your local probate court’s website before launching a full administration. If the probate assets are under the threshold, you may be able to handle the whole thing in an afternoon.
Who Inherits When There Is No Will
When someone dies intestate, state law dictates exactly who inherits and in what proportions. The court has no discretion. Personal relationships, verbal promises, and handshake agreements do not matter. Only the statutory hierarchy does.
The surviving spouse almost always receives the largest share, but the exact amount depends on who else survives. Under the framework most states follow, a spouse inherits the entire estate if the deceased left no children and no living parents. When children exist, the spouse typically receives a fixed dollar amount off the top plus a fraction of the balance, with the rest divided equally among the children. If the deceased had children from a different relationship than the surviving spouse, the spouse’s share is usually smaller.
Children inherit equally. When a child died before the parent, that child’s own descendants split the deceased child’s share, a principle called per stirpes distribution. Three children, one predeceased leaving two grandchildren: those grandchildren split the one-third their parent would have taken.
If there is no spouse and no descendants, the statute moves outward: parents, then siblings, then aunts, uncles, and cousins. When no living relative can be found after a diligent search, the estate escheats to the state. In practice this is rare; courts search hard for even distant relatives.
One boundary worth stating plainly: unmarried partners, stepchildren who were never legally adopted, and close friends inherit nothing under intestacy law, no matter how important the relationship was. If the person you expected to inherit falls into one of those categories, the answer under intestacy is no.
Getting Appointed as Administrator
Because no will named an executor, the court appoints an administrator. State law sets a priority list: surviving spouse first, then adult children, then parents, then siblings, then more distant relatives. If several people at the same priority level want the role, they either serve jointly or agree on one. Anyone with priority who doesn’t want the job files a written renunciation, formally stepping aside so the next person in line can apply. If no family member is willing or able, the court can appoint a public administrator or professional fiduciary.
To petition, gather:
- Multiple certified copies of the death certificate from the local vital records office. Five to ten is a reasonable starting point; you’ll need originals for the court, banks, insurers, and government agencies.
- An asset inventory covering real estate deeds, bank and investment statements, vehicle titles, business interests, and any other property held in the deceased person’s name alone, with estimated values.
- Debt records, including credit card statements, mortgage balances, medical bills, and personal loans. Pulling a credit report on the deceased can surface debts you don’t know about.
- Names, addresses, and dates of birth for every potential heir under your state’s intestacy statute.
Most probate courts provide a standardized petition, commonly called a Petition for Letters of Administration, through the clerk’s office or the court website. It asks for the date of death, last address, estimated estate value, and a list of heirs. Complete it carefully. Errors and omissions cause delays, and delays are expensive in a process already measured in months.
File the petition with the probate clerk along with the death certificate and a filing fee. Fees vary widely, from around $50 to over $1,000 depending on the jurisdiction and estate size. If the judge approves the petition, the court issues Letters of Administration, the document giving you legal authority to act for the estate. No bank will release funds and no title company will process a transfer without those letters.
The Surety Bond
Courts almost always require an intestate administrator to post a surety bond, an insurance policy protecting heirs and creditors if the administrator mishandles funds. Premiums typically run 0.5% to 1% of the estate’s total value per year. For a $500,000 estate, that is roughly $2,500 to $5,000 annually. The estate usually reimburses the cost, but you may have to pay upfront. Some courts waive the bond if all heirs consent in writing, though that’s less common in intestate cases, where trust between family members is often uneven.
Getting an EIN
One of your first tasks after receiving the letters is obtaining an Employer Identification Number from the IRS. The estate is a separate taxpaying entity, and you need the EIN to open an estate bank account and handle financial transactions. You can apply online at irs.gov and receive the number immediately.1Internal Revenue Service. Responsibilities of an Estate Administrator
Notifying Heirs and Creditors
The administrator must send formal written notice to every known heir and creditor, usually by certified mail. You are also typically required to publish a notice in a local newspaper alerting unknown creditors that the estate is open. Publication runs $100 to $500 depending on the paper and how many weeks the notice must appear.
After publication, a creditor claims period begins, usually three to six months depending on the state. Creditors who miss the deadline lose the right to collect. This waiting period is the main reason probate takes as long as it does. You cannot distribute assets to heirs until it closes: a valid late claim you failed to plan for can make you personally liable as administrator. Do not rush this phase.
Paying Debts and Taxes
Before any heir receives a dollar, the estate pays its debts in a specific order set by state law. The exact priority varies, but administrative expenses (court costs, attorney fees, administrator compensation) generally come first, followed by funeral costs, family allowances protecting a surviving spouse and minor children, taxes, secured debts like mortgages, and finally unsecured debts such as credit cards and medical bills. If there isn’t enough to go around, lower-priority creditors get partial payment or nothing.
Heirs are not personally responsible for the deceased person’s debts unless they co-signed or are otherwise independently liable. The estate pays what it can, and the rest is extinguished.
On taxes: the administrator must file the deceased person’s final Form 1040 for the year of death. If the estate itself earns more than $600 in gross income during administration, from interest, rent, dividends, or asset sales, a fiduciary income tax return (Form 1041) is also required, filed under the estate’s EIN.2Internal Revenue Service. Instructions for Form 1041 and Schedules A, B, G, J, and K-1 (2025) Federal estate tax rarely applies; the 2026 filing threshold is $15,000,000.3Internal Revenue Service. Whats New — Estate and Gift Tax Some states impose their own estate or inheritance taxes at much lower thresholds, so check your state’s rules separately.
Distributing Assets and Closing the Estate
Once the creditor claims period expires and verified debts and taxes are paid, you distribute what remains according to your state’s intestacy statute. This is mechanical. You follow the percentages the statute prescribes. Real estate transfers by recording a new deed. Vehicles transfer by title. Bank accounts pay out by check from the estate account.
You then prepare a final accounting: a detailed report of every dollar the estate received and every dollar it spent, including opening asset values, income earned during administration, debts paid, administrative expenses, and the final distribution amounts. This goes to the court and to the heirs. Heirs typically sign a receipt and release form confirming they got their share and releasing you from further liability.
After the court approves the accounting, it issues an order formally closing the estate and terminating your authority. The surety bond is released and your legal obligations end. Where estates get stuck at this stage is when the numbers don’t reconcile or an heir disputes a distribution, so meticulous record-keeping from day one is the single best thing you can do to avoid a messy finish.