If your loved one died without a will or estate plan, state intestacy laws will automatically determine how their assets are distributed—you don’t need to create those rules, they already exist. However, you will need to go through probate court to formally recognize who inherits what, settle any debts, and transfer assets into the rightful names. This typically takes 1 to 2 years and costs between 3 and 7 percent of the total estate value. For example, if your parent passed away with a $600,000 estate (a home plus savings) in Florida, probate fees alone could exceed $24,000 in combined attorney and personal representative costs, not including court costs.
This article walks you through what happens when someone with dementia passes away intestate, how assets get distributed, what the probate process involves, and how to navigate the financial and legal complications that follow. The stakes are real and the timeline is long. While you’re grieving and managing the practical details of your loved one’s passing, probate can drag on, tying up assets your family may desperately need. Understanding the intestacy process and your role in it helps you prepare, avoid costly mistakes, and move forward.
Table of Contents
- What Happens When Someone Dies Without a Will or Estate Plan?
- Understanding Probate Court and Timeline in Your State
- Probate Costs and What Your Family Will Pay
- How Assets Are Distributed Under Intestacy Law
- When a Surviving Family Member Also Has Dementia
- Handling Debts, Creditors, and Medicaid Claims
- How to Prevent This Situation for the Next Generation
- Conclusion
- Frequently Asked Questions
What Happens When Someone Dies Without a Will or Estate Plan?
When someone dies without a valid will, their estate is considered “intestate.” This doesn’t mean the court will leave everything undecided; rather, state intestacy laws kick in automatically and dictate who inherits what. In most states, spouses inherit the majority or the entire estate if there are no children, or they inherit a portion with children dividing the remainder equally. The exact split depends on your state’s specific intestacy statutes—some states give a surviving spouse everything, others divide the estate between spouse and children, and a few give everything to children if the deceased had none. The burden then falls on the family to file a petition with the probate court, formally establishing who the rightful heirs are. The court appoints a personal representative (often called an executor in states with wills, or an administrator when there’s no will) to manage the estate during probate.
This person collects all assets, pays debts and taxes, and distributes what remains according to the intestacy law. If no one in the family volunteers or is willing, the court may appoint someone—sometimes a public administrator or an attorney—which can drive costs up further. The rise in intestate deaths is significant. In 2024, the UK saw 51,258 Grants of Letters of Administration issued, the highest number in five years. This reflects a growing trend of people dying without formal estate plans, particularly among aging populations affected by dementia. Many families simply don’t anticipate the death or understand the importance of advance planning, especially when cognitive decline makes drafting a will impossible.
Understanding Probate Court and Timeline in Your State
Probate is the legal process by which the court validates the existence of heirs, settles the deceased’s debts and taxes, and transfers assets to the rightful beneficiaries. In most cases—particularly in Florida and Minnesota—probate routinely takes 1 to 2 years to complete. This timeline assumes no major disputes, all debts are paid relatively quickly, and the assets are straightforward (a house, bank accounts, a car). If there are complications—unclear heirs, missing documents, or contested claims—probate can stretch much longer. The process typically begins when the family files a petition with the probate court in the county where the deceased lived. The court then requires publication of notice to creditors, giving them time to file claims against the estate.
If your loved one had medical bills, long-term care debts, or credit cards, creditors can make claims during this period. The personal representative must respond to these claims, negotiate, or challenge them in court. All of this adds time. Additionally, if your loved one received Medicaid to help pay for long-term dementia care—which costs $60,000 to $90,000 per year in Florida or $75,000 to $96,000 per year in Minnesota—the state may file a claim to recover those costs from the estate before heirs receive anything. The timeline is also affected by how quickly assets can be valued, property titles transferred, and accounts closed. Bank accounts and investment accounts are typically easier to handle; real estate is slower and may require appraisals or additional documentation. If the house is the primary asset but the heirs cannot agree on whether to sell it or who will buy out the others’ share, probate delays multiply.
Probate Costs and What Your Family Will Pay
The financial hit of probate can be substantial. Probate costs typically range from 3 to 7 percent of the estate’s total value, though some states calculate fees differently. In states that use a percentage of assets, the fees are split between the attorney and the personal representative, each claiming roughly 3 percent. In other states, fees are fixed or calculated hourly. For a $600,000 estate, you’re looking at $18,000 to $42,000 in combined probate-related fees alone. This doesn’t include court filing fees, appraisals, accountant fees, or publication costs. The longer probate drags on, the higher the bill. One often-overlooked cost is the interaction between dementia care expenses and probate. If your loved one spent their final years in a nursing home or receiving in-home care, those bills accumulate quickly.
The estate must pay those outstanding medical and care bills before any distribution happens. If the estate is small relative to the care costs, there may be nothing left for heirs after debts are settled. This is particularly true if Medicaid paid for long-term care and later files a claim for reimbursement—known as estate recovery. Medicaid can recover the cost of nursing home care, some home care, and other services from the probate estate, taking priority over heirs. A real-world example: An elderly person with Alzheimer’s received in-home care for three years before moving to a nursing home for two years, totaling $300,000 in out-of-pocket care costs. Their estate was valued at $500,000 (a modest house and some savings). Probate fees consumed $30,000, care bills had already been paid from liquid assets, and Medicaid filed a recovery claim of $150,000 for nursing home costs it had covered. The remaining heirs received only $320,000 from a $500,000 estate—a 36 percent loss to fees and prior claims. If that person had had a proper estate plan with a trust, much of this could have been avoided.
How Assets Are Distributed Under Intestacy Law
State intestacy laws are designed to distribute an estate to the closest relatives in a legally defined order. Typically, a surviving spouse receives the largest share or sometimes everything. If there’s no spouse, children inherit equally. If there are no children, parents might inherit. If there are no parents, siblings divide the estate, and so on down the line. This hierarchical system varies slightly by state—some states give a surviving spouse everything regardless of children, others set aside a portion for the spouse and the remainder for children. You need to consult your state’s specific intestacy statute or speak with a probate attorney in your state to know the exact order. The practical challenge emerges when there are multiple heirs who must agree on major decisions.
If your loved one left a house, the heirs must decide whether to sell it, refinance it, or have one heir buy out the others’ share. If they cannot agree, the court may force a sale or partition. These disputes slow down probate and drive up legal costs. Additionally, if one heir is owed a specific amount from the estate while another is owed a different amount (because of variations in the intestacy rules), the personal representative must carefully track and document every distribution. Errors here can lead to lawsuits from unhappy heirs. One limitation of intestacy distribution is that it is inflexible. The law does not care about your family’s actual needs or circumstances. A dependent grandchild, a caregiver who dedicated years to your loved one, or a charity your loved one cared about receive nothing under intestacy law. A properly drafted will or trust could have prioritized these beneficiaries, but without one, the law ignores them.
When a Surviving Family Member Also Has Dementia
A particularly thorny complication arises when a surviving spouse or family member who inherits from the intestate estate also has dementia or another cognitive impairment. In this case, someone must petition the court to become that person’s guardian (for healthcare decisions) or conservator (for financial decisions) to manage their portion of the inherited estate. Guardianship and conservatorship proceedings require separate court filings, additional attorney fees, and court-ordered accountings of how the money is spent. Many dementia families find themselves navigating two parallel court processes: the probate of the deceased and the guardianship of the surviving family member. This layering of legal processes can extend timelines significantly and create unexpected costs. A guardian or conservator must file annual accountings with the court, showing what funds were received and how they were spent.
If the conservator invests the money or moves it between accounts, documentation is required. Some states impose annual fees or bonding requirements on guardians and conservators. Over the course of 5 to 10 years (typical for a person with dementia living after their spouse’s death), these recurring fees and accountings can total tens of thousands of dollars. Furthermore, if the dementia family member eventually passes away while still under a conservatorship, their inherited portion may trigger another probate process if they did not have a will or estate plan either. This perpetuates the cycle: one intestate death leads to another. The answer is advance planning. If you know someone with dementia will likely inherit from another family member, a carefully structured trust can bypass guardianship requirements and allow a named trustee to manage funds directly.
Handling Debts, Creditors, and Medicaid Claims
When probate begins, the personal representative must publish notice to creditors in a local newspaper. Creditors then have a set period—often 3 to 6 months—to file claims against the estate. This includes credit card companies, medical providers, hospitals, nursing homes, and the state Medicaid program. The personal representative evaluates these claims and either pays them or disputes them. Until creditor claims are resolved, the probate cannot be closed and assets cannot be distributed to heirs. In many dementia cases, the largest creditor claim comes from Medicaid or from the nursing home itself if Medicaid did not cover all costs. Medicaid has broad authority to file estate recovery claims, taking back money it spent on long-term care services for someone over age 55.
This claim takes priority over inheritance to heirs. If your loved one received $150,000 in Medicaid-funded nursing home care, the state will attempt to recover that $150,000 from the estate before your family sees a dime. Some states have exemptions—they won’t pursue recovery if the surviving spouse or minor or disabled children still live in the home—but those exemptions are narrow. One critical warning: If the decedent owed debts that exceed the estate’s value, heirs are not personally liable for those debts (with rare exceptions like owing the IRS). However, the estate itself is liable, and creditors will exhaust the assets. The result is that after all debts are paid, there may be nothing left for beneficiaries. This is why understanding the estate’s total debts before probate begins is crucial. If long-term care costs, medical bills, and attorney fees will exceed the liquid assets, heirs may want to explore ways to speed up probate or negotiate with creditors early.
How to Prevent This Situation for the Next Generation
The statistics are stark: more than 6 million Americans currently have dementia, and that number is projected to reach 13 million or more by 2050. As dementia becomes more common, so too does the likelihood that someone will pass away with cognitive decline, without a proper estate plan in place. The solution is advance planning—creating a will, a healthcare power of attorney, a financial power of attorney, and possibly a revocable living trust before cognitive decline makes those documents impossible to execute. A revocable living trust is particularly valuable in dementia planning. Instead of going through probate, assets held in the trust automatically transfer to named beneficiaries upon death, bypassing the entire 1 to 2 year court process and reducing fees dramatically.
A properly funded trust can reduce probate costs by 50 to 80 percent. Additionally, if the person loses capacity, a successor trustee can step in and manage finances immediately without waiting for a court-ordered conservatorship. For families at risk of intestate death or facing the burden of probate, the modest cost of setting up a trust ($1,000 to $3,000) is an investment that saves tens of thousands later. Healthcare and financial powers of attorney are equally important, allowing you to designate someone to make medical and financial decisions if you lose capacity, without court involvement at all. The Alzheimer’s Association provides resources on legal documents and planning specifically for people concerned about dementia, offering step-by-step guidance for families.
Conclusion
When someone dies with dementia and no estate plan, the family inherits a difficult legal process: a probate court case that typically lasts 1 to 2 years, costs 3 to 7 percent of the estate’s value, and involves managing creditor claims, potential Medicaid recovery, and complex asset distributions dictated by state law—not by the person’s actual wishes. Your first step is to contact a probate attorney in your state to understand your state’s intestacy laws, the likely timeline, and the costs specific to your situation. Ask early about whether any creditors (particularly Medicaid) will file claims, and get a realistic estimate of probate expenses.
Moving forward, if you have aging parents or relatives or if you yourself are at risk of cognitive decline, prioritize creating a will, healthcare power of attorney, financial power of attorney, and ideally a revocable living trust. These documents cost far less than probate fees and eliminate the stress and uncertainty of intestate succession. The Alzheimer’s Association and local estate planning attorneys can guide you through the process. Taking action now—while you are well and can make clear decisions—is the single most effective way to protect your family from the expensive, lengthy, and emotionally draining probate process.
Frequently Asked Questions
Can I contest the probate distribution if I don’t think the intestacy law is fair?
Once probate is complete and the court approves the distribution, contesting it is extremely difficult and expensive. Your only option is to challenge the distribution before the probate is finalized, which requires proving that the personal representative or another heir committed fraud or that the intestacy law was misapplied. This requires litigation within probate court and almost always results in legal fees that exceed any benefit you might recover.
What if my loved one owed more in debts than their estate is worth?
Creditors’ claims are paid from the estate in a legal priority order—typically administrative costs and taxes first, then specific classes of creditors. Heirs receive whatever is left, which may be nothing. Heirs are not personally liable for the deceased’s debts, so creditors cannot pursue heirs directly (except in rare circumstances like spousal community property debt). However, the estate itself is fully liable.
How long do I have to file for probate after someone dies without a will?
There is no fixed deadline, but the longer you wait, the more creditor claims may accumulate. Most states recommend filing within 30 to 60 days of death to start the probate process. Waiting too long can create problems with property titles, bank accounts, and creditors’ rights.
If my parent had dementia for 10 years before death, can I still use their property or bank accounts, or do I have to wait for probate?
In most cases, you cannot touch the property or accounts—they are legally the deceased’s property, and creditors and heirs have claims on them. Some states allow heirs to access small estates quickly through expedited probate (if the estate is under a certain threshold, often $5,000 to $50,000), but larger estates must go through full probate. Your best option is to contact the bank or creditor with a copy of the death certificate and ask about their specific process for accessing accounts.
If I hire a probate attorney, will they take a percentage of the estate or a flat fee?
This varies by state and by attorney. Some charge hourly rates, some charge flat fees, and some charge a percentage of the estate (typically split equally between their fee and the personal representative’s fee). Discuss fees upfront before hiring. Be aware that attorney fees are paid from the estate—they are a cost of probate itself—so higher fees reduce what heirs receive.
Can Medicaid really take the inheritance if my parent received nursing home benefits?
Yes. Medicaid estate recovery allows the state to file a claim against the probate estate for the cost of long-term care services provided to the deceased person (if they were age 55 or older). Some states exempt the home if a surviving spouse, minor child, or disabled child still lives there, but those exemptions are narrow. Plan for Medicaid recovery as a likely deduction from the estate.
