What Happens When a Parent Dies Without a Will?

Losing a parent is a difficult experience and the emotional toll it takes can be overwhelming. On top of that, you may be facing legal and financial decisions that only make a trying time even more complicated. If your parent or the parent of a child in your family passes away without a Will, you might be unsure about the next steps. This article will help guide you through some common scenarios so you can begin preparing for what may come next.

Need some help navigating Maryland’s complex will and estate laws? You don’t have to go it alone. Call us at 301-456-0982 or fill out this form for a FREE consultation with our expert Maryland estate attorney, who can support you through this transition, allowing you to focus on healing instead of paperwork.

What is a Will?

A Will is a legal document in which a person expresses their wishes on how their property will be distributed after their death and names one or more persons to manage the estate until its final distribution. If the creator of the Will is the parent of a minor child(ren), it will also state who should assume guardianship of the child until s/he reaches the age of adulthood.

Without a Will, the estate distribution is carried out according to state laws of intestacy, which may not always align with the deceased’s wishes.

What are the “Laws of Intestacy”?

Intestacy is the state of dying without a will. State law dictates who can transfer ownership of the assets and who can receive distribution of the assets. These are known as intestacy laws.

The laws of intestacy varies state by state, so the best way to understand what rules will apply to your specific scenario is to work with an estate planning lawyer who practices in your state.

What Happens if a Parent Dies Without a Will?

If a parent dies without a Will the process changes depending on whether the children are minors, whether there is a surviving parent, and whether both parents were married or divorced at the time of their death.

Below, we’ve outlined some common scenarios that people encounter when dealing with the passing of a loved one who was a parent and an outline of steps to take if you find yourself in a similar situation.

Scenario 1: A Parent of a Minor Child Dies Without a Will

#1: Understanding Guardianship:

In the absence of a Will specifying guardianship, someone will need to petition the court to have a legal guardian appointed for any minor children.

If there is a surviving parent of the child, guardianship will likely be granted to them. If there are no surviving parents, someone with a familial relationship will need to file for guardianship. This is a lengthy process in part because the court will have to determine the suitability of the person(s) petitioning to be guardian and, ultimately, what is in the best interest of the child.

If no family members volunteer or, if there is no surviving immediate family members, the child will become a ward of the state and will be placed into foster care.  

#2 Managing the Estate:

If there is a surviving spouse, that spouse would inherit the deceased parent’s assets.

If the child has no surviving parents, the minor child typically inherits the parent's assets. It is important to have a court-appointed guardian or a conservator who will manage the assets until the child reaches adulthood.

#3 Steps to Take:

If there is no surviving parent, initiating the legal process for guardianship quickly is a crucial first step. Family members can volunteer for guardianship, but the court will decide based on the child’s best interests.

Beyond that, working with an estate attorney to prepare any new documents or filings related to the transfer of assets to the minor child will ensure that the assets are smoothly transferred and appropriately managed until the child comes of age.

Scenario 2: An Adult Child Has Just Had a Parent Pass Away

#1: Probate Process:

Without a Will, the estate will go through probate, where the court oversees the distribution of assets according to state law.

#2: Claiming Inheritance

You may be entitled to a portion of your parent’s estate as an adult child. To do so, you will have first to establish your relationship to your parent with the court. This usually means presenting a document, usually your birth certificate, to the court for verification.

#3: Handling Debts and Taxes:

You’ll also need to address your parent’s outstanding debts and taxes. It’s advisable to consult with an estate attorney and a tax professional for guidance on this step, as it can be complex and have severe implications for the next of kin if not handled appropriately.

Scenario 3: One of Two Divorced Parents Dies Without a Will

#1: Estate Distribution:

If the deceased parent was divorced, their assets will be distributed to their children or next of kin, as the ex-spouse typically has no legal claim unless there is other documentation stating otherwise.

#2: Property and Debt Concerns:

What was part of the marital estate and what belonged solely to the parent must be distinguished before assets are transferred to the child.

#3: Guardianship of Children

If the deceased parent of minor children was divorced, the process of guardianship for the children will depend on the details surrounding the existing custody agreement. If the court deems the surviving parent fit to assume full custody of the child, full guardianship of the child will likely be passed on to them. However, if additional circumstances prohibit the surviving parent from assuming full custody, the court may begin proceedings to find a suitable guardian for the child.

Do I Need an Estate Attorney if My Parent Dies Without a Will?

Utilizing an estate attorney is highly recommended, given the potential complexities of different family structures. An experienced estate attorney will take the time to understand all the unique factors surrounding your family’s situation and help guide you through the applicable legal processes.

Beyond that, navigating a death is not easy, and having a legal team on your side that can handle the legal hurdles can free you up to focus on the incredibly important work of healing and taking care of your family.

At The Law Office of Dawn Trainor-Fogleman, we take the time to listen and understand everything you might be facing so we can provide the best support possible. You can call us today at 301-456-0982 for a FREE consultation so you can put the paperwork behind you and step into the future with confidence.