How to divide personal items and estate when there is no will?

2 answers | Last updated: Mar 15, 2017
Lucy in nc asked...

How to divide personal items and estate when there is no will? When someone dies and they have no will, can family members appoint themselves executor of the estate to divide personal items and household, no real estate? Legally, what is supposed to happen with the goods and the bills?


Expert Answers

Barbara Repa, a Caring.com senior editor, is an attorney, a journalist specializing in aging issues, and the author of Your Rights in the Workplace (Nolo), now in its 10th edition.

Unfortunately, when someone dies without a will, or "intestate," a surviving family member cannot simply declare himself or herself an executor and divvy up the property. A probate court has to appoint a person to do the job. While this may seem like an unnecessary bunch of legal gobbledegook, you can just imagine the fights and name-calling that might happen in some families if the matter went on totally unsupervised.

When there is no will, the property is given to close relatives in a hierarchy set out in state law, and the final bills and debts must be paid off, first.

To find out the exact procedure required in your county, do an Internet search of "probate court" and the name of your county. There may also be good news in the situation you describe: Most probate courts have simplified procedures to follow if there is not much valuable property involved. And most people can handle the matter through the court on their own, without going through the expense of hiring a lawyer for help.


Community Answers

Geo2015 answered...

Miss Repa is obviously an estate expert and knows her stuff… However I do take exception with her view that most people can manage the estate process, through probate court, all on their own, without going through the expense of hiring an estate lawyer for help. I’ve worked with hundreds of heirs going through the probate process… and believe me – they need legal help most of the time. It’s true, some people do seem to do OK on their own without an attorney… And that’s great.

But I’d have to say, in my experience, over 18 years, at least 75%, 80% of those heirs run into trouble without an estate attorney or probate lawyer to lead the way, keep deadlines in sight, file documents on time, handle paperwork correctly, and so on. And advising heirs to go it alone, is at the least sort of risky advice, in my humble opinion. Sure, it saves thousands of dollars, good point. But some heirs can get totally bottled up and thereby risk tens if not hundreds of thousands of dollars. Plus, they are often responsible for other heirs and are putting their assets at risk without professional help. Not going through probate with an experienced attorney is at best a real risk.

But anyway, as for not having a will, and going through probate court… hoping all the decedent’s assets and property is divided up fairly and equitably – well, that’s a tough call. Naturally we all want a will to look to when a loved one, a parents or whomever, passes away. But a lot of people don’t write wills, and there you have it. We must depend on the probate court, and that judge we end up with. So be it. And a lot of times one or more heir feels left out, or like they got short shrift…maybe others, siblings, got more than they deserved – whatever.

So oddly enough, a lot of heirs who feel like probate court didn’t treat them fairly, and like they didn’t get the inheritance they were supposed to, or deserved to – wind up feeling angry and disgruntled…. And many of those disappointed heirs will decide not to wait for probate to end in a year or two… but instead will go for a speedy probate cash windfall to brighten up their mood, maybe to feel better about things in general, certainly about their disappointing inheritance. And so decide to get a loan on inheritance… to borrow against their inheritance, to get some fast probate cash from a 72-hour probate loan or inheritance advance, probate advance, or inheritance advance loan.

And those disgruntled heirs can often be seen online, researching estate loans or estate advances, inheritance loans, large or small inheritance advances or inheritance advance loans, probate loans, or probate real estate loans — along with submitting inheritance cash advance, probate loan, or probate cash advance applications to various online probate loan and trust inheritance loan companies that exclusively provide loans on inheritance, inheritance loan advances, probate cash advance funds, inheritance loans in advance, and loans against inheritance, from well respected inheritance loan companies like www.heiradvance.com, or www.inheritanceadvance.com or maybe www.inheritancenow.com... Well known probate loans specialists that provide similar inheritance advance services for trust beneficiaries and probate heirs. This type of probate cash windfall seems to make disappointed heirs feel a lot better. I guess having some advance inheritance money to feel better beats getting an ulcer from worrying about inheritance assets they didn’t get, or didn’t get as much as, or didn’t get enough of… yada yada. Hey, I suppose a this sort of feel-good windfall is better than a permanent stomach ache from inheritance stress.

Eventually they get the rest of their inheritance, when probate finally ends… and I guess by that point time has healed all wounds, as Shakespeare says. I imagine if everyone in an intestate estate can’t be made to get happy in probate court with an equal inheritance, there are other ways to make things right. Or nearly right.