When someone dies without a will—called dying "intestate"—their estate still goes through probate, but state law decides who inherits instead of the deceased's wishes. The process becomes longer, more expensive, and often creates family conflict that a simple will could have prevented. Understanding how intestate probate works helps you protect your family and avoid this costly default path.
What Happens When There's No Will
Without a will, the probate court applies your state's intestacy laws to distribute assets. These statutes follow a strict hierarchy: typically spouse first, then children, then parents, then siblings. If you have a blended family, minor children, or significant assets spread across multiple states, intestacy laws may distribute your estate in ways you'd never have chosen.
The probate court also appoints an administrator (called an executor if there were a will) to manage the estate. This person must petition the court for authority and follow all probate procedures—even though no will exists to guide them.
The Intestate Probate Process: Step by Step
Filing the petition. The prospective administrator (usually a surviving spouse or adult child) files a petition with the probate court in the county where the deceased lived. This petition includes the death certificate, basic estate information, and a list of known heirs.
Court appointment of administrator. The judge reviews the petition and appoints an administrator if everything is in order. State law determines priority: spouse usually comes first, then adult children, then parents.
Notifying heirs and creditors. The administrator publishes a notice in a local newspaper and sends certified notices to all known heirs and creditors. This waiting period typically lasts 30–60 days and protects creditors' rights.
Asset inventory and appraisal. The administrator gathers all estate assets, obtains appraisals for real property and significant personal property, and files an inventory with the court.
Paying debts and taxes. Estate debts, final income taxes, and any estate taxes must be paid before distribution. This step often takes several months.
Distribution to heirs. Once debts and taxes are cleared, remaining assets go to heirs according to state intestacy law. The administrator files a final accounting with the court.
Court discharge. After the judge approves the final accounting, the administrator is released from their duties.
Timeline for Intestate Probate
Intestate probate typically takes 6 months to 2 years, depending on:
- Estate complexity and asset types (real estate, business interests, and out-of-state property extend timelines)
- Whether disputes arise among heirs
- How quickly the administrator processes documents
- Whether creditor claims emerge late in the process
Simple, uncontested estates with liquid assets may settle in 6–9 months. Estates with real property, multiple jurisdictions, or family conflict can drag on 18+ months.
Costs You'll Face
Intestate probate isn't free. Expect:
- Court filing fees: $200–$1,000+ depending on state and estate size
- Bond premium (if required): 0.5–2% of estate value
- Attorney fees: $1,500–$5,000+ for simple estates; $5,000–$15,000+ for complex ones (some attorneys charge hourly at $150–$400/hour; others work on flat fees)
- Appraisal fees: $500–$2,000 for real property
- Publication and notice costs: $300–$800
- Probate accounting and tax preparation: $1,000–$3,000
Total cost: typically 3–7% of the estate value, though simpler estates run lower. A $300,000 estate might cost $9,000–$21,000 in probate expenses alone—costs that a basic will could largely avoid.
How an Attorney Can Help
A probate attorney guides the administrator through filing, creditor notices, tax obligations, and court deadlines. They handle disputes between heirs and negotiate contested claims. If you're named administrator for an intestate estate, hiring an attorney within the first month prevents costly mistakes.
If you're reviewing your own estate plan and want to avoid this scenario, Mercoly makes it easy to compare and find trusted estate planning attorneys in your area who can draft a will and create a complete plan tailored to your family and assets.
Frequently Asked Questions
Q: Can I avoid probate entirely if someone dies without a will? No—intestate estates still go through probate. However, if the estate is small (under $15,000–$40,000, depending on your state), simplified or small-estate probate procedures may apply, reducing time and cost significantly.
Q: What if the intestate estate has real property in another state? You'll likely need ancillary probate in that state, which means additional court filings, attorney fees, and delays. This scenario reinforces why a will and proper planning matter.
Q: Who pays the probate costs if there's no will? The estate pays all costs before heirs receive distributions. If the estate lacks liquid funds, the administrator may need to sell assets to cover bills.
Ready to protect your family? Find and compare qualified estate planning attorneys on Mercoly to draft a will and avoid intestate probate.