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What You Need to Know About Probate When Intestate

Two young women looking at cedar chest at estate sale. Do you need a probate when intestate?

When someone dies without a will, or “intestate,” the process of carrying out the deceased person’s wishes and transferring their estate becomes more complicated. This guide explains the basics what to expect when going through the process of probate when intestate. Below is some basic information so you can take legal action and begin the grieving process.

Understand the Definition of Intestate.

In the legal world, “intestate” refers to a person who dies without having made a will. This means that they didn’t include plans for the distribution of their assets or any directives as to how their property should pass to beneficiaries. Understanding what intestate means can help you navigate probate and complete the process easier.

Establish Who is in Line to Inherit Assets.

One of the first steps of probate when intestate is to establish who will inherit from the deceased person’s estate. In some cases, this can be a simple process if there are few close relatives. But for complicated family dynamics, like if there are estranged children of the deceased or distant family members, it can be more complex. Sometimes it requires research to identify potential heirs.

For more information, read our blog Where Do Assets Go If No Will. Every state has different rules about who gets what during a probate when interstate. For example, in Arizona, a first cousin or grandparent could inherit. But more distant relatives don’t inherit.

Take Steps to Obtain Letters of Personal Representative.

After you identify the heirs, the next step is to obtain Letters of Personal Representative from the local court. This legal document authorizes an individual to act on behalf of the deceased in all matters relating to probate and estate administration.

Figure Out If You Need a Formal or Informal Probate.

If all of the heirs agree about who should become the Personal Representative, then you can file informally. That means that there is no court hearing. Instead, the Probate Registrar (at the Clerk of Court) will appoint you immediately.

If not everyone agrees on who should become the Personal Representative, then you need to file a formal Petition and schedule a hearing in front of a judge or court commissioner. That takes longer because you need to send a Notice of Hearing to the heirs. They can attend the hearing and object if they don’t want you to be the person in charge.

Understand Your Legal Responsibilities as a Personal Representative.

As a Personal Representative, you are required to act in the best interests of the estate in accordance with applicable laws and regulations. This includes taking all necessary steps to ensure the accuracy of documents related to the estate and filing taxes. Furthermore, you must protect and distribute assets responsibly. Adhering to these duties is important. If you don’t do what you are supposed to, the court could order you to pay money in the form of a sanction or damages.

Follow Procedures to Distribute Assets and Close the Estate.

After you have identified and inventoried all assets, and after the creditor waiting period has expired, the Personal Representative must take steps to ensure that they are distributed according to state laws. Generally in intestate estates, the assets are divided among family members according to their degree of relationship to the deceased. Prospective heirs may need to prove their right to inheriting assets by providing sufficient documentation that demonstrates legal heirship. Once all assets have been distributed, fees and taxes paid and other obligations fulfilled, the estate can be closed.

Let Us Help You.

Dealing with a probate when intestate is complicated. Let us guide you and make sure you do things properly. Call us today at 602-443-4888. We’re here to help.



Founding attorney Paul Deloughery has been an attorney since 1998, became a Certified Family Wealth Advisor. He is also the founder of Sudden Wealth Protection Law.