How does probate work without a will? The purpose of probate is to distribute assets and debt, if there is no will, the estate may not need to go through it.
Q: What happens, if a person passes away and no one files probate because the estate has no assets? Do any of the deceased relatives become liable for taxes owed by the person that died? Would the relatives have to pay off the debts to the dead person’s creditors?
How Does Probate Work Without A Will?
A: When a person dies, the legal process in place to take care of the assets and liabilities of that person is through the probate court. Through the probate court, the deceased person’s assets get distributed and the debts of the deceased are taken care of.
While not all assets may go through probate, those assets that do go through probate are distributed in accordance with the wishes set forth in the will signed by the deceased. If he or she had no will, the assets will pass to the deceased person’s relatives in accordance with the laws in which the will is probated or in some more complicated cases, the distribution might be dependent on where the property is located.
If a person has assets that he or she has put into a trust, those assets do not need to go through the probate court as those assets remain in the trust and are distributed in accordance with the terms of the trust. Insurance proceeds and retirement accounts with beneficiaries named will distribute those assets as required by the terms of the insurance policies and the retirement accounts. Finally, money and assets held in joint tenancy with rights of survivorship will automatically pass at the time of the decedent’s death to the survivor on the account or the survivor owning jointly a home.
Debt and the Probate Process
The probate process is also there to give notice to creditors to come to the court and request payment for any money owed to that creditor. If there are no assets in the estate, the creditors will get no money on the amounts they are owed.
While you may want to ask an attorney that specializes in probate issues any specific questions you might have, the intent of the probate system is to finalize the distribution of assets and the payment of debts of a decedent. A final accounting of all assets distributed and all creditors paid might be made to the court and upon that final accounting, the probate estate is closed.
Once the estate is closed, creditors of the decedent’s estate that failed to show up after having been given notice of probate might be barred from trying to collect a debt against the decedent and the representative of the decedent in the probate proceedings.
So as far as your question is concerned, in general, the debts of the deceased are his or her debts and not the debts of the family when you go through probate. If there are no assets whatsoever, there are no assets to probate and the creditors rights to pursue the estate of the deceased would continue as they would not be extinguished in probate. Having said that, in the unlikely event that any money would appear after a person dies the family might have to use that money to pay off the debts of the creditors before keeping any of it.
While the laws and the timing for probate differ from state to state, the essence of probate is the same in attempting to distribute assets and pay off the debts of the decedent.
Debt Collections
You should know, however, that in some cases the debts of one person can be collected against a spouse or other family member. For example, if you have a joint credit card with the deceased and you have used that card to run up the balance on the card to buy things for yourself, the credit card company might try to collect the balance owed against you in some circumstances.
When it comes to health care bills, you might find that medical care expenses for the care of a loved one might be billed to the deceased but the health care provided might go after the spouse or child for those health care costs. In some states, there are laws that permit the beneficiary of the service to become responsible for those debts in certain situations.
In these two situations, you might find a person liable for those debts whether or not a person has died. The death does not cause the debt to transfer to the other family member or user of the credit card. The death does not cause the debt to transfer to the other family member or users of the credit card. The debt would exist in those states that allow creditors the beneficiary of the services or user of the card at the time the service is provided or the goods are purchased.”
The subsequent death of the primary person on the debt would give rise to the executor of the estate to pay those debts during the probate proceedings and if the debts were not paid, the creditor could still go after the party that benefited from the services or goods purchased.
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My Brother passed away unexpectedly and we need to find out if he had super & debt’s that need to be sorted out!
My father died years ago, no will, no debts or assets. Owned home which daughter has been paying bills and taxes. How can I legally, with both sisters consent, obtain ownership of home in Pennsylvania ?
My uncle recently passed with no will or living trust in place. My mother and brother were able to obtain a dual power of attorney before he passed. He had children and they were notified of his death but do not want to have part in anything. Next of kin is my mother. My uncle owned a home and 2 cars. Cars are paid off. Can my mother legally give me one of my uncle’s cars or does she need to have cars go through probate. The car that she gave me I have parked at my son’s house in Colorado to prevent any break in. Is this legal for me to move the car? Do probate need to know about cars? He also own a home in Colorado and we are aware the house will go into probate? Please advise. Thank you
My Grandmother passed away recently. My Mom, who passed last Sept 2017 was listed as Grandma’s executor. I was named durable POA for Grandma. My Uncle who was not close with her, wants everything and feels entitled. This is not what my Grandmother wanted. He has been using her debit card after death so I had the acct frozen. Do I have any rights or will he get everything since he is her son?
My aunt died without a will. She have money in the bank, but not enough to be concern with private procedures.
She has a brother and an unknown granddaughter.
Should I spend time trying to transfer court procedures, information?
when a person dies can a family member go to probate saying there was no will when there was a valid will?
Marie:
It’s illegal to do that in the U.S. and while we’re not experts in UK law (I see you have a UK email address), it’s probably illegal to do it there, too. If a family member does this and you have a copy of the will, you can bring it before the court and show it to them. Or, if you know there is a will but can’t get at it (because it’s locked in a safe), you can hire an attorney to represent you to force discovery of the will.
Good luck,
Ilyce Glink, Publisher
ThinkGlink.com
My mother passed away four months ago my dad passed away in 1993 they own the house which was sold prior to my mom’s passing I believe it was sold illegally what can I do
My boyfriend purchased a Mobil home and property which was financed through a bank in his name only, before finishing the setting up of the home he passed away, there was no will or insurance, I was never able to moved into the home. His children have decided to just let it go back to the bank and not go through probate court, he did have credit card debt in is name and we have a joint savings account, they want me to split the savings account with them, I don’t believe I have too.