What to Do When a Parent Dies Without a Will: A Family Guide to Probate and Senior Care Debts

The Short Answer

If your parent died without a will, state law determines who inherits their assets through a process called intestate succession. You are not left without options, but you will need to open a probate case, settle debts (including any senior care costs), and distribute what remains according to your state's rules. This guide walks through each step.

Laws vary significantly from state to state. This article provides general information, not legal advice. Consult a probate attorney in your parent's state of residence for guidance specific to your situation.

Before You Assume There Is No Will: Search First

Families sometimes begin the intestate process only to discover a will weeks later. Before you file anything with the probate court, take time to search thoroughly.

Look in your parent's home: a filing cabinet, a safe, a locked desk drawer, or a fireproof box. Check any safe deposit box at their bank (you may need a death certificate and a court order to access it, depending on the state). Contact your parent's attorney, accountant, or financial advisor. If you are unsure who they used, look through mail and bank statements for legal fee payments.

Here is a script you can adapt: "My name is [Your Name], and I am the child of [Parent's Name], who passed away on [date]. I believe my parent may have been a client. Could you check your records for any estate planning documents, including a will or trust?"

If a will surfaces after you have already petitioned for intestate administration, the probate court can amend the proceeding. The will generally takes priority, and the court can appoint the executor named in it. Discovering a will late adds time and cost, so a thorough search up front is worth the effort.

Understanding Intestate Succession: Who Inherits What

When someone dies without a valid will, state intestacy statutes decide who receives their property. The general order of priority is the surviving spouse, then children, then parents and siblings, though the exact shares differ by state.

A few patterns to know:

• Married parent with children. In many states, the surviving spouse receives a set share (often one-half to two-thirds), and the children split the rest. In community property states like California and Texas, the surviving spouse may inherit all community property outright.
• Unmarried parent. Children typically inherit everything in equal shares.
• Stepchildren. Unless your parent legally adopted them, stepchildren generally have no automatic right to inherit under intestacy law.
• Children from a previous marriage. They usually have the same inheritance rights as children from a later marriage, which can create tension when a surviving spouse is involved.

Because no will means no named executor, the probate court appoints an administrator. This is often the closest relative who is willing to serve and petitions the court first. More on that process below.

Immediate Steps to Take in the First Few Days

Secure the home and belongings. If your parent lived alone, change the locks, collect the mail, and safeguard important documents: deeds, bank statements, insurance policies, and tax returns. Keep homeowners or renters insurance active until the property is formally transferred.

Obtain death certificates. Order 10 to 15 certified copies from the vital records office in the county where your parent died. Costs vary by state, typically $5 to $20 per copy. You will need them for banks, insurers, the probate court, and government agencies.

Notify Social Security and pension providers. If your parent received Social Security benefits, report the death by calling 1-800-772-1213. Ask about any lump-sum death benefit ($255 for an eligible surviving spouse or child) and whether survivor benefits apply. For more on how benefits interact with care costs, see our guide on what happens to a parent's Social Security and pension when they move to a nursing home. Contact any pension provider as well.

Begin an asset and debt inventory. Use a simple spreadsheet to track every account, property, vehicle, retirement fund, insurance policy, and outstanding obligation. Include the senior care facility contract if your parent was in a nursing home or assisted living community.

Contact the care facility. If your parent was receiving care, call the billing department: "I am [Name], child of [Parent]. Please send a final statement of all charges and any outstanding balance, including any pending Medicaid estate recovery claims."

How Probate Works Without a Will

Probate is the court-supervised process of settling a deceased person's estate. It is required when the parent owned assets solely in their name, such as real estate or individual bank accounts, that exceed a state-specific threshold. That threshold varies widely, often ranging from $50,000 to $150,000.

Step-by-Step Overview

1. File a petition with the probate court in the county where your parent lived. The court reviews the petition and appoints an administrator.
2. Publish a notice to creditors in a local newspaper. This starts the clock for creditors to submit claims. The window is typically 3 to 6 months, but state laws vary widely. In some states the period extends to 9 months. Always verify deadlines with your county probate court or a local attorney.
3. Inventory all assets and file the inventory with the court.
4. Pay valid debts from the estate, in the order of priority your state requires.
5. Distribute remaining assets to heirs according to intestate succession law.

What Probate Costs

Estimates commonly cited by AARP place total probate costs at roughly 3% to 7% of the gross estate value. For a $200,000 estate, that could mean $6,000 to $14,000 in court fees, attorney fees, and administrative expenses. Some attorneys charge a flat fee, others bill by the hour, and a few states set fees as a percentage of the estate by statute. Ask any attorney you consult for a written fee estimate before you hire them.

If the estate is small enough, your state may offer a simplified procedure, sometimes called a small estate affidavit, that avoids full probate entirely. Check your county probate court's website for threshold amounts and forms.

Identifying and Handling Estate Debts, Including Senior Care Costs

Before any heir receives a dollar, the estate must pay its valid debts. Common estate debts include funeral expenses, final medical bills, nursing home or assisted living charges, credit card balances, and any remaining mortgage.

Medicaid Estate Recovery

If your parent received Medicaid-funded long-term care services after age 55, federal law allows the state to recover those costs from the estate. This is called Medicaid estate recovery, and every state is required to have a program in place. The state can claim an amount up to what Medicaid paid for your parent's care.

Some states limit recovery to assets that pass through probate. Others have expanded recovery to include assets like retirement accounts or payable-on-death accounts. Check with your state's Medicaid agency for the specific rules that apply.

Are Children Personally Liable for a Parent's Debts?

Generally, no. An adult child is not personally responsible for a deceased parent's debts unless they co-signed a loan, held a joint account, or signed a care facility contract as a personal guarantor rather than as a representative of the parent.

There is one important exception. A handful of states, including Pennsylvania and Nevada, have filial responsibility statutes that can hold adult children liable for a parent's unpaid care costs. These laws are not frequently enforced, but they do exist and have been used. If your parent received care in one of these states, consult a local attorney. And as a general rule, never sign a nursing home admission contract as a guarantor for payment. Federal law (the Nursing Home Reform Act) prohibits facilities from requiring a third-party guarantee as a condition of admission.

Requesting Debt Verification

For every creditor claim, request a debt verification letter that itemizes the charges and confirms the amount owed. This applies to care facilities, hospitals, and credit card companies alike.

How Creditors Make Claims Against the Estate

Once the notice to creditors is published, creditors must submit a written claim within the statutory period. The administrator reviews each claim and pays them in the order of priority set by state law. A typical priority order looks like this:

1. Secured debts (mortgage, car loan)
2. Funeral and burial expenses
3. Medical and care debts
4. Unsecured debts (credit cards, personal loans)

If the estate does not have enough money to pay all debts, some go unpaid. The administrator distributes available funds fairly among creditors of the same class. Heirs may receive nothing if the estate is insolvent, but they are not responsible for the shortfall (barring the exceptions noted above).

If a creditor misses the filing deadline, the claim may be barred entirely. The administrator can reject late claims. If a claim seems inflated, here is a script: "I am the estate administrator. This claim appears to exceed the amount owed. Please provide an itemized statement and proof of services by [date]."

Protecting the Family Home from Medicaid Recovery

For many families, the parent's home is the largest asset in the estate, and it is often the primary target of Medicaid estate recovery. But protections exist.

• Spousal protection. If a surviving spouse still lives in the home, states cannot pursue recovery while the spouse is alive.
• Dependent or disabled child. If a child under 21, or a child of any age who is blind or permanently disabled, lives in the home, recovery is typically deferred or waived.
• Hardship waivers. Federal law requires every state to offer a hardship waiver process. If selling the home would deprive an heir of their primary residence or cause undue hardship, you can apply for a waiver through your state's Medicaid agency. Approval is not guaranteed, but it is worth pursuing.
• Homestead exemptions. Some states exempt the home from estate recovery altogether under certain conditions. Rules vary significantly.

Because these protections depend entirely on state law, consult a probate or elder law attorney before making any decisions about the home.

Assets That May Bypass Probate Entirely

Not everything your parent owned goes through probate. These assets typically pass directly to a named beneficiary or co-owner:

• Life insurance with a named beneficiary (not the estate) is generally beyond the reach of creditors.
• Jointly owned property with rights of survivorship passes automatically to the surviving owner.
• Retirement accounts and bank accounts with a designated beneficiary or payable-on-death designation transfer outside of probate.

Knowing which assets are inside and outside the probate estate matters because it determines what creditors, including Medicaid, can claim.

Practical Checklist for the First Few Months

• Search thoroughly for a will before filing for intestate administration.
• Obtain 10 to 15 certified copies of the death certificate.
• File the petition for administration within 30 to 60 days.
• Inventory all assets: bank accounts, real estate, vehicles, securities, retirement accounts, and insurance policies.
• Notify Social Security (1-800-772-1213), the VA (if applicable), and any pension providers within 30 days.
• Contact the care facility for a final statement of charges.
• Set up an estate bank account to receive funds and pay debts. Keep detailed records of every transaction.
• Publish the notice to creditors and track the claim deadline.
• Request debt verification letters from each creditor.
• Consult a probate attorney if the estate includes real estate, multiple heirs, disputed claims, or likely Medicaid recovery.

When to Get Legal Help and Where to Find It

You can handle a small, straightforward estate on your own using your county probate court's forms and instructions. But hire a probate attorney if:

• The estate exceeds $100,000 in value.
• There are multiple heirs who disagree.
• The estate includes real property in more than one state.
• Medicaid estate recovery is likely.
• A filial responsibility claim is possible.

If cost is a concern, the Eldercare Locator (a service of the U.S. Administration on Aging) can connect you with local legal aid programs and pro bono attorneys who handle elder law cases. Your state bar association's lawyer referral service is another starting point.

A note on estate taxes: the IRS requires a federal estate tax return (Form 706) only if the gross estate exceeds the federal exemption, which is $13.61 million for 2024 and is adjusted for inflation. Most families will not owe federal estate tax. However, several states impose their own estate or inheritance taxes with much lower thresholds, sometimes as low as $1 million. Check your state's department of revenue.

Free resources worth bookmarking include AARP's estate planning guides, Nolo's probate reference books (available at most public libraries), and your county probate court's website, which often posts forms, fee schedules, and step-by-step instructions.

This article is general information and does not constitute legal advice. Laws governing probate, intestate succession, Medicaid recovery, and filial responsibility vary by state. Consult a licensed attorney in your jurisdiction for advice tailored to your family's situation.