When a Parent Dies Without a Will, What Do You Do?
While many of our blogs have a focus on what happens to minor children if their parents pass, that doesn’t address what happens to adults when their parents pass. A parent’s death is often your first experience with navigating the world of trusts, estate laws, and potentially probate. Considering that a large number of American adults don’t have an estate plan, you may find yourself wondering what to do when a parent dies without a will.
The answer to this question, unfortunately, is not a simple one. When your parent dies without a will, several factors determine the outcome. The key to navigating this situation is understanding intestate succession laws and the many unique situations that can affect it.
Understanding Intestate Succession
Intestate refers to the circumstance when an individual passes away without leaving a valid will. Wills, trusts, and other estate planning instruments provide directives on how a person's estate—which includes money, real estate, and other assets—should be managed or distributed after their death. The absence of a will leads to a legal process known as probate, during which the court will determine and oversee the distribution of the estate.
Intestate succession is the term for the guidelines that probate courts use to identify beneficiaries and the order in which they are considered for inheritance when someone dies without a will. These rules are specific to each state. In Arizona, for example, the probate courts follow a distinct set of intestate succession regulations to ascertain how an estate is to be divided among potential heirs.
Here's how probate courts in Arizona approach estate distribution under intestacy laws:
Situation 1: No surviving spouse, but with children or descendants.
When a person dies without a spouse, their estate is entirely bequeathed to their children. If the children are not living, the estate passes to the deceased's grandchildren or great-grandchildren. In the absence of descendants, the estate will transfer to the deceased's parents, and if they are not living, it will go to the deceased's siblings.
Situation 2: With a surviving spouse, but without children.
The entire estate is inherited by the surviving spouse.
Situation 3: No surviving spouse, children, or descendants.
Should the court's exhaustive search for valid heirs come up empty, the estate escheats, meaning it reverts to the state of Arizona.
Situation 4: With a surviving spouse and descendants.
The rules for inheritance in the first three scenarios are clear-cut. However, intestate succession becomes more complex in cases where there is both a surviving spouse and legitimate descendants, especially in blended families or second marriages where the descendants are not biologically related to the surviving spouse. The nuances of asset distribution in such scenarios are covered in subsequent sections.
When a Parent Dies Without a Will…
…but with a living spouse and children, how will probate decide who will inherit the money and other properties? To begin, probate must sort the estate according to the property type:
Separate properties - are properties received by the deceased before marriage. The children or other descendants along the line are entitled to one-half of the deceased’s separate properties.
Community properties - are properties received by the deceased during marriage. The deceased and their spouse will have an equal share of these community properties. The deceased’s children or other descendants along the line are entitled to the entire share of the deceased.
Once sorted, probate validates all declared assets. The process can then investigate and track the beneficiaries if necessary. The court also hears and resolves any petitions or lawsuits filed regarding the estate distribution according to state law.
What More Can You Do?
The death of a parent is an impactful event in any person’s life. Next to grieving for the loss, dealing with the estate that your parent leaves behind can be the most stressful thing you must do. And if your father or mother died without a will, expect more stress and headaches to come with it. Below is a list of the things you can do to make this process less stressful for you and your family:
1. Confirm, to the best of your abilities, that there really isn’t a will.
First, you must confirm whether your parent did not make a will, just to make sure. It is not uncommon that a parent forgets to tell their children that they made a will. Check for possible places they may keep their will, such as bank or safety deposit boxes, storage units, home and office documents, etc. Speak with close friends and acquaintances to see if your parent told anyone about making a will. Or, if possible, check for any attorney business cards or contact information your parent might have saved.
2. Prepare the necessary documents.
Probate may require you to submit documents related to your parent’s properties. Collecting and organizing them will help speed up the probate process.
3. Speak with your co-beneficiaries as soon as possible.
If you have other siblings, a living parent, and other potential beneficiaries of the estate in question, having a meeting with them is critical. Take this opportunity to voice out your questions, make clarifications, or even assess your deceased parent’s properties. Laying everything out in the open prevents misunderstandings and future conflicts.
4. Seek legal help.
It does not hurt to seek the advice of experts in estate planning and probate law. They can help you identify the necessary actions to make the probate process go smoothly and, as much as legally possible, to your favor. Legal advice may come with extra costs to you, but the benefits are worth it. Sound pieces of legal advice can help you maximize the potential inheritance, prevent stress and bitterness in the family, and save on probate costs.
5. Make your will.
If experiencing a complicated probate process does not convince you to make your will, then nothing will. You do not want your loved ones to go through the heartbreak of losing you while fighting among themselves and stressing about probate proceedings. Give them the gift of a worry-free estate so they can grieve you properly, and they will thank you for it.
What to Do When a Parent Dies Without a Will?
Our best answer is: Expect and prepare for probate. The probate process is usually unavoidable in this case. So, the best thing you can do is take steps to make it go smoothly and in as short a time as possible. Let us help you accomplish this. With our decades of experience in assisting effective estate plans and representing hundreds of clients in probate court, we’re here for you with the expertise to guide you every step of the way. Give us a call today with any questions or to book a consultation.