There are several answers to the question.
First you need to consider why it is that you think you need to do anything. Many times, there are no assets that need to be transferred through the probate process. If there are no houses, no real estate. no retirement funds or insurance policies without named beneficiaries, no bank accounts without joint tenants and no other titled assets that need title transferred and no funds to be paid into the estate from asbestos or other sources then it is possible that opening an estate may not be necessary. It is wise though to consult with a lawyer to verify instead of trying to answer this question yourself.
In the event that it is determined that an estate needs to be opened, you can still do so even though there is no Will. However, instead of an “Estate” this will be referred to as an “Administration”. There are laws in place controlling who will be in charge of the Administration. This person will be the “Administrator” instead of the “Executor” when there is a Will. The powers, duties and responsibilities of the Administrator will be determined by the applicable statute instead of by the language of the Will. The distribution of assets will be determined by statute instead of the wishes of the deceased person. This comparison alone should be enough to cause you to want to make or update your Will. When make your own Will you are in charge. When you don’t do it, you get what is in effect a “Generic Will” that the State has written for you. It will likely not accomplish exactly what you would have wanted and will cause your loved ones more expense and red trouble.
It is important to consult with a lawyer upon the death of a loved one to ensure that you take whatever action is appropriate. Some actions that need to be taken have strict time limitations so it is important to act promptly.
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