A Loved One Passed Away Without a Will. Now What?
The survivors are left with some difficult probate decisionsBy Doug Mentes, Esq. | Last updated on January 29, 2023
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When someone close passes away, there is a long list of decisions to be made and tasks to complete in managing their affairs. Wills are created to assist loved ones in making some of these decisions. Without a will, managing the deceased’s estate is more difficult. The tasks loved ones and family members must complete during a time of mourning are significant, including:
- plan a funeral or ceremony for the deceased person
- find and contact next of kin, and potential heirs
- contact and discuss the matter with attorneys
- determine who will manage the estate
- find the deceased’s estate planning legal documents
- determine the deceased’s assets, bank accounts, debts and bills
- determine how best to secure those assets
- file paperwork with the district court
- communicate with banks, insurance companies, real estate professionals and movers
- list home for sale
- file tax returns on behalf of the deceased
Who Does the Work?
According to intestacy laws someone must agree to manage the deceased’s estate. Without a will, this will be a surviving spouse (or domestic partner), adult child of the deceased, or other close relative. Courts refer to this position as the Personal Representative (PR). The court will decide if the person can serve as PR by making a determination if they have “priority” to manage the estate.
Unless the deceased organized all of their important documents, loved ones must search through their home and belongings to find any and all records of assets. Once a PR is appointed by the court, the PR will have the authority to request information on the deceased’s assets from others.
The assets must then be divided into two types: probate and non-probate assets. Probate is the legal process of settling an estate in court after death. Non-probate assets are assets with a designated beneficiary or joint owner (unless that beneficiary is the estate). Examples include:
- life insurance policies typically designate a beneficiary
- bank and retirement accounts may be held jointly with another or designate a beneficiary
- real estate may be held with another as joint tenants
The remaining assets, less any debts, are the probate estate. In Minnesota, if the deceased did not own real estate and has probate assets valued at $75,000 or less, probate may be avoided by executing an Affidavit for Collection of Personal Property.
Who Gets What Assets?
Non-probate assets will be transferred to the named beneficiary or joint owner outside of the probate process. Probate assets of someone who dies without a will are distributed via intestate succession laws. Determining the specific share of any relative depends on a variety of case-specific facts and careful review of Minnesota’s Uniform Probate Code.
Envision a family tree when determining how assets will be distributed via intestate succession. If the decedent left a surviving spouse and children, they will share the entirety of the probate estate. If neither a spouse nor children survive the decedent, more distant relatives of the deceased will share the probate estate. If no relatives survived the decedent, the probate assets will go to the state. Unmarried partners, friends and charities will receive nothing.
The final phase of the probate process is to draft a complete inventory and accounting report for the court to close the process. The amount of work necessary and the difficult decisions left to be made make managing a loved one’s estate a huge responsibility—not to mention the emotional toil that often accompanies the loss of a loved one. An experienced probate attorney can take on this burden. A law firm or an estate planning attorney can offer legal advice about estate tax and beneficiary designations. They should be able to quickly and easily answer questions, assist in decision-making, and move you efficiently through the process.
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