When a parent dies without a will, state intestacy law decides who inherits and a probate court oversees the transfer. Someone in the family — usually a surviving spouse or adult child — has to petition that court for legal authority, use it to inventory assets and pay debts, and then distribute what remains to the heirs the statute names. The process commonly runs several months to two years, and the order you handle things in matters.
What to Do in the First Few Weeks
Order at least ten certified copies of the death certificate from the funeral home or your local vital records office. Banks, insurance companies, government agencies, and the probate court will each want their own original, and running out mid-process means delays.
Secure the home. If the property will sit empty, confirm doors and windows lock, adjust the thermostat so pipes don’t freeze or overheat, and ask the homeowner’s insurer to update the policy to reflect that the house is unoccupied. Forward the mail through the post office so bills, account statements, and tax notices reach someone who can act on them.
Call the Social Security Administration at 1-800-772-1213 if the funeral home hasn’t already reported the death. A surviving spouse may qualify for a one-time lump-sum death benefit of $255, and certain family members may be eligible for ongoing monthly survivor benefits.1Social Security Administration. What to Do When Someone Dies Any Social Security payment that arrives for a month after the date of death generally has to be returned.
Notify your parent’s employer, pension administrator, and health insurance providers. Cancel subscriptions no one needs anymore. Then open a notebook or spreadsheet and start logging every account you discover, every bill that arrives, and every payment made on the estate’s behalf. That log becomes the backbone of the accounting you’ll eventually file with the court.
Which Assets Skip Probate
Not everything your parent owned has to go through court. Several categories transfer directly to a named beneficiary or co-owner regardless of whether a will exists, and sorting them out early keeps you from dragging assets through probate that were never supposed to be there.
- Life insurance policies and retirement accounts pay out to whoever is listed as the beneficiary. Contact the insurer or plan administrator with a death certificate to start the claim.
- Jointly owned property with right of survivorship — a home, a bank account, a vehicle — passes to the surviving owner automatically. Filing a death certificate with the bank or county recorder is usually enough.
- Payable-on-death and transfer-on-death accounts, which can include bank accounts, brokerage accounts, and in some states vehicle titles, go directly to the named person.
- Assets held in a living trust pass under the trust’s terms, handled by the successor trustee, with no court involvement.
Beneficiary designations override intestacy law. If your parent named one child on a life insurance policy years ago and never updated it, that child receives the full payout even if intestacy would have split it. Check every account for a designation before assuming it flows through probate.
Check Whether the Estate Qualifies for a Simplified Procedure
Full probate is slow and expensive. Every state offers some kind of shortcut for smaller estates, and qualifying can save thousands in legal fees and months of waiting.
A small estate affidavit lets heirs claim assets by filing a sworn statement with whoever holds the asset — a bank, the DMV — instead of opening a case. Dollar thresholds vary widely. Some states cap the affidavit at $15,000; others allow it for personal property worth $100,000 or more, and a few states set thresholds above $150,000. Most states also require a waiting period after death, often 30 to 45 days, before the affidavit can be used.
Summary administration is a middle route: a court-supervised procedure with less paperwork and fewer hearings than regular probate. It’s typically available for estates somewhat above the affidavit cap but below a separate ceiling, or where the estate’s debts are minimal. Check your county probate court’s website for the specific limits.
Estates that include real estate, significant debts, or disputes among family members usually need full probate even if the total value falls below the small-estate line.
Who Inherits Under Intestacy
Without a will, the state writes one for you. Every state has an intestacy statute that ranks relatives in a fixed order. About 18 states base their rules at least partly on the Uniform Probate Code, but even states that don’t follow it use a similar hierarchy.2Cornell Law Institute. Uniform Probate Code
- A surviving spouse typically receives a large share or the entire estate, with the exact percentage depending on whether the parent also had children from another relationship.
- Children generally split what the spouse doesn’t take, or the entire estate if there is no surviving spouse.
- Parents of the deceased inherit only if no spouse or children survive.
- Siblings, then nieces and nephews, come next.
If one of the parent’s children died first but left children of their own, most states send that deceased child’s share down to the grandchildren. Some states instead divide equally among all living descendants at each generational level, which can produce different results. The court applies whichever method the state statute requires.
These rules are rigid. An informal promise that one child would get the house, or a decades-long estrangement from another, carries no legal weight. The court distributes based on family relationships alone.
A few circumstances disqualify someone who would otherwise inherit. The “slayer rule,” in effect in nearly every state, bars a person who intentionally and unlawfully caused the parent’s death from inheriting; their share passes as if they had died first. Divorce or legal separation typically severs a former spouse’s intestacy rights, though timing relative to the death matters and the rules are state-specific.
Gathering Documents Before You File
Before petitioning the court, build a clear picture of what the estate owns and owes. Pull together real estate deeds, vehicle titles, bank and investment statements, and any records of valuable personal property. Recent tax returns often surface accounts or income sources that aren’t otherwise obvious.
Debts matter just as much. Request your parent’s credit reports from the three major bureaus — the person handling the estate is entitled to pull them — and look for outstanding mortgages, credit card balances, personal loans, and medical bills. Compile a list of every creditor with contact information and approximate balances. Missing a creditor here can come back after the estate is supposedly closed.
Don’t forget digital accounts: email, social media, online banking, cryptocurrency, domain names. Most states have adopted a version of the Revised Uniform Fiduciary Access to Digital Assets Act, which gives an estate administrator legal authority over certain digital property.3Uniform Law Commission. Fiduciary Access to Digital Assets Act, Revised In practice, each platform runs its own process and will usually require Letters of Administration plus a death certificate before granting access. Locate your parent’s devices and any password manager while that information is still reachable.
Petitioning the Court and Getting Letters of Administration
File a petition for administration with the probate court in the county where your parent lived. Many courts post the forms online; the clerk’s office has paper copies. The petition asks for your parent’s name, date of death, names and addresses of all known heirs, and an estimate of the estate’s value.
Be accurate. Every heir identified under the intestacy hierarchy must be listed and will receive formal notice of the proceedings. Leaving someone out can invalidate the entire process later. Filing fees run from a few hundred dollars to over a thousand depending on the county and estate size.
The court reviews the petition to confirm you’re eligible to serve. Most states give priority to the surviving spouse, then adult children, then other close relatives. If multiple family members want the role, the judge decides; if nobody volunteers, the court can appoint a professional administrator. A hearing is scheduled after the review.
Many judges require the administrator to post a surety bond before taking control of estate assets. The bond works like insurance: if the administrator mishandles funds, the bonding company compensates the estate. The cost scales with estate value and is paid from estate funds, not your own. All heirs can jointly ask the court to waive the bond, but the judge has the final say.
At the hearing, the judge formally appoints the administrator and issues Letters of Administration. This single document is what proves to banks, title companies, and government agencies that you can act on behalf of the estate. Without it, no institution will release funds or transfer property. Get several certified copies from the clerk immediately.
Notifying Creditors and Paying Debts in the Right Order
Once you have legal authority, you have to notify creditors. That typically means publishing a notice in a local newspaper and, in most states, sending direct notice to every creditor you already know about. Publication starts a clock. Creditors who miss the deadline lose the right to collect. The window varies by state, commonly two to six months.
Pay valid claims in the order your state’s statute requires. Most states rank them roughly like this: funeral and burial expenses, costs of administering the estate, secured debts like mortgages, taxes, then medical bills and general unsecured debts. This priority is not optional. An administrator who pays an heir before paying a legitimate creditor can be held personally liable for the shortfall. This is the single riskiest part of the job, and the main reason many families bring in a probate attorney for at least the debt phase.
If the estate’s assets can’t cover its debts, it’s insolvent. The administrator pays creditors in statutory order until the money runs out, and the remainder is extinguished. Heirs generally don’t inherit a parent’s debts unless they co-signed a loan, or in a community property state where specific rules about shared obligations apply.
Tax Filings You’re Responsible For
The administrator handles at least two and sometimes three layers of tax filings. Missing any of them can bring penalties or personal liability.
Final Income Tax Return
Your parent’s final federal income tax return covers January 1 through the date of death. File it on Form 1040 by the regular April deadline of the following year, reporting all income earned up to the date of death and claiming all eligible deductions and credits. If a refund is due, file Form 1310 to claim it on behalf of the estate.4Internal Revenue Service. File the Final Income Tax Returns of a Deceased Person If prior years’ returns weren’t filed, those have to be filed too.
Estate Income Tax
The estate itself is a taxable entity. Income the estate’s assets generate after the date of death — interest, dividends, rent, capital gains from sales — gets reported on Form 1041. The filing threshold is $600 in gross income.5Internal Revenue Service. Instructions for Form 1041 and Schedules A, B, G, J, and K-1 That catches more estates than people expect, especially when a house sits on the market for months while the parent’s savings account keeps earning interest.
Federal Estate Tax
Federal estate tax only applies to estates valued above $15,000,000 for deaths occurring in 2026.6Internal Revenue Service. Estate Tax Most families will never owe it. Some states impose their own estate or inheritance tax at much lower thresholds, so check your state. If the estate does exceed the federal threshold, Form 706 is due within nine months of death.
Distributing What’s Left and Closing the Estate
After debts, taxes, and administrative expenses are paid, the administrator distributes the remainder in the shares the intestacy statute dictates. Cash divides easily. Real estate transfers require filing a new deed at the county recorder’s office in the heir’s name. If the heirs can’t agree what to do with a property, the court can order it sold and the proceeds split.
Personal property — furniture, jewelry, vehicles — should be appraised if there’s any disagreement about value. The administrator’s job is to apply the statute’s percentages, not to mediate feelings about who should get a particular item. When sentimental fights come up, an independent appraiser and the possibility of a court-ordered sale usually resolve things faster than negotiation.
The last step is filing an accounting with the court. It itemizes every dollar received and every dollar paid out, including creditor payments, taxes, administrator compensation, and distributions. The court reviews it, and once the judge approves, an order closes the estate and releases the administrator from the surety bond.
If the House Has a Mortgage
You might worry that the lender will demand the mortgage be paid off when the property changes hands. Federal law prevents that. The Garn-St. Germain Act bars mortgage lenders from enforcing a due-on-sale clause when property transfers to a relative because the borrower died.7Office of the Law Revision Counsel. 12 US Code 1701j-3 – Preemption of Due-on-Sale Prohibitions The same protection applies when a joint tenant or tenant by the entirety dies and the surviving owner takes full title.
If you inherit the house, you can keep paying the existing mortgage under its original terms without refinancing. The lender can’t call the loan due just because your parent died. You do have to keep making the payments and meet the other loan obligations. If the heirs decide to sell instead, the mortgage gets paid off from the sale proceeds during probate.
When to Hire a Probate Attorney
Most states don’t require you to hire an attorney to administer an intestate estate, but doing it alone gets riskier as complexity grows. A small estate with one bank account and no real property is designed to be handled through the simplified affidavit without a lawyer. Anything involving real estate, significant debts, multiple heirs, or family conflict is a different situation, and professional help is usually worth the cost.
Attorney fees for probate work may be charged hourly, as a flat fee, or as a percentage of the estate, and they are paid from estate funds rather than out of pocket. The real financial exposure of going without an attorney isn’t the fee you save. It’s the personal liability you take on if you pay creditors in the wrong order, miss a tax filing, or distribute assets before every claim against the estate is resolved.