Transfer of Property After Death Without a Will

How long do you have to transfer property after death? That depends on where the deceased owned the property. State intestate succession laws will dictate the transfer of property after death without a will. Still, the process will be much quicker if a notarized Last Will and Testament designates the executor of the estate and its heirs.

If you need to transfer property after death without a will, be prepared for a lengthy, stressful process. The probate court will take control of the estate and may decide to sell any property to cover debts. 

Most often, the transfer of property after death without a will starts with the spouse and children. If none are surviving, ownership can transfer to a surviving parent or sibling. Hire an attorney with experience in estate planning law to determine the next best steps you should take when a loved one dies without a will.

Our guide discusses how to start the transfer of property after death without a will and ways you can quicken the process. Keep reading to learn more about the intestate laws in your state and how to get in touch with local estate planning attorneys in your area.

What happens to the transfer of property after death without a will?

When someone dies without a will, it means they died intestate. Intestate succession laws will immediately apply, and ownership of the estate will be transferred to the court. Without an official document to name heirs and beneficiaries, the probate court will decide the future of the estate and any property it includes.

If the property is not sold to cover the debts or taxes on the estate, ownership will transfer to the next of kin based on the state laws where the property exists.

In general, you can expect the transfer of property after death without a will to go to the:

• Spouse
• Children
• Parents
• Siblings
• Grandchildren, nieces, and nephews
• Grandparents
• Aunts and uncles
• Cousins

However, if the property in question is co-owned with someone (known as joint tenancy), then the co-owner would inherit the deceased’s share without probate.

How does probate work? When there’s a will, the process is easy — the court will confirm your will is valid and ensure the executor follows what is written in the document. Unfortunately, without a will, probate must be involved in every step of the process.

First, the court will appoint an executor following the order listed above. Then, it will determine what’s needed to cover taxes and debts, if any. Finally, it will divvy up property based on the surviving heirs.

Survivors can gather any documents they have that show how the deceased wanted the estate to be handled. However, without an official notarized will, the court isn’t obligated to honor their wishes. You may want to hire an attorney to help protect the best interests of your loved ones.

How will my state’s intestate succession laws impact the transfer of property?

Only 18 states follow the Uniform Probate Code, which follows the heir succession listed above. If you don’t live in one of those 18 states, you will want to research your state laws, as they can vary wildly regarding inheritance.

Remember, transfer of property laws are determined by the state where the property is owned, not where the deceased lived or died. Therefore, if the deceased owned multiple properties, you could be dealing with many different state intestate laws to determine who inherits what.

For example, when a person dies without a will in New York, the spouse is not entitled to the property. If there are surviving children, the spouse will only inherit half of the property in the estate. 

Intestate succession laws in California are also different. Transfer of property after death will often go to the surviving spouse and children. However, if the property was previously inherited from a deceased spouse and there are no surviving children, the property will return to that spouse’s side of the family.

Beyond intestate succession, state estate planning laws also dictate how taxes are paid. For example, when someone dies, their estate is responsible for paying the taxes on the property and assets before they are divided up among the heirs.

States With an Estate Tax

As you can see, not every state requires an estate tax. Even fewer require an inheritance tax:

States With an Inheritance Tax

If you live in Maryland, you are required to pay both estate and inheritance taxes.

Is probate necessary for the transfer of property after death?

Yes, probate is inevitable. Even if someone dies with a will, the probate court follows the terms of that document. It cannot influence the process unless an inheritor contests the will. If that is the case, you will need to hire an estate planning attorney as soon as possible.

However, there are many instances when the transfer of property after death without a will is possible without probate. For example, you can inherit property and avoid probate court when:

• You’re listed as the beneficiary in a living trust
• You’re listed as the beneficiary in a transfer-on-death deed
• You co-own the property with the deceased

You may also avoid probate court when inheriting from a life insurance fund, retirement plan, or from a payable-on-death or transfer-on-death account.

What You Need to Know About the Transfer of Property After Death Without a Will

State intestate succession laws will determine who inherits the property when someone dies without a will. A probate court will name an executor of the estate, most often a surviving spouse or child, who will be responsible for handling the taxes, debts, and claims on the estate.

Can a will reduce estate taxes? Unfortunately, no, but writing a will can save your family the stress of court and protect your assets from being sold or used against your wishes.

Sometimes, the court may sell the property to cover any debts or taxes owed by the estate. The surviving spouse and children will inherit any remaining property in most states, but state laws will vary when it comes to the succession of inheritance. 

However, writing a will and naming your own heirs will stop the probate court from selling your property. There are different types of wills, and an estate planning attorney can help you find the one that fits your lifestyle.

Case Studies: Transfer of Property After Death Without a Will

Case Study 1: Spouse and Children Inherit Property

Mr. Smith, a resident of California, passed away without a will. He is survived by his spouse and two children. As per California’s intestate succession laws, the transfer of property after death will primarily go to the surviving spouse and children. The probate court will appoint an executor to handle the estate, including any taxes and debts. If there are no surviving children, the property may return to the deceased spouse’s side of the family.

Case Study 2: Property Co-Owned Through Joint Tenancy

Ms. Johnson and her sister, Mrs. Thompson, jointly owned a property in Maryland. Unfortunately, Mrs. Thompson passed away without a will. In this case, Ms. Johnson would inherit Mrs. Thompson’s share of the property without going through probate. Joint tenancy allows for automatic transfer of ownership upon death.

Case Study 3: Property in Multiple States

Mr. Davis owned properties in both New York and Florida. When he passed away without a will, the intestate succession laws of each state came into play. In New York, the spouse is not entitled to the entire property. If surviving children exist, the spouse will only inherit half of the estate. In Florida, the transfer of property after death would likely go to the surviving spouse and children. It’s essential to consider state-specific laws when dealing with properties in multiple jurisdictions.

Case Study 4: Lengthy Probate Process

Mrs. Adams, a resident of Texas, died without a will. As a result, the probate court took control of her estate, which included various properties and debts. Due to the absence of clear instructions, the probate process became lengthy and stressful for the family. The court had to determine the executor and handle the sale of properties to cover outstanding debts.