“Becoming an Executor of an Estate When There’s No Will” is part of Executor Duties 101, a series by Executor.org that highlights steps in the process of settling an estate.
Since many people die with no will in place, they haven’t legally picked an executor to handle their final affairs, which can include closing accounts, distributing assets and property, and heading to probate court. When we die without a will our estate is considered “intestate” and a probate court judge will be the one responsible for appointing someone to manage the closing of the estate.
Although probate law can vary by state, we want to help you prepare for the steps you’ll likely need to take to be named as the person responsible for an estate when someone dies without a will. Those steps are typically as follows:
1. Determine if Anyone Else Wants to be Executor*. If the deceased hasn’t selected an executor via a will, that doesn’t mean they haven’t asked someone to handle their final estate matters. Talk to family and close friends to see whether they feel like the role should fall to them or if the deceased had unofficially named someone. The court will have the final say when no will exists, but it will generally pick an interested candidate based on their relationship with the deceased, with the hierarchy as follows: spouse or civil union partner, child, grandchild, parent, sibling, niece/nephew. If no family member survives or is interested, a creditor or other interested person can apply. *Note: Technically, you are only considered an “executor” when named in a will. If appointed by the court, you will be called an “administrator” or a similar term. Regardless, the role and executor duties are the same.
2. File a Petition for Probate. The first step to being selected as estate executor is filing paperwork with the probate court in the county where the deceased lived. In most cases, you will need to provide the original death certificate, the estimated value of the estate, and a list of any surviving family members and beneficiaries. You should also expect to fill out an application (an appointment as executor form), pay fees and submit proof of your identity (driver’s license, passport, etc.). It is wise to either call the clerk of probate court and ask what documents will be needed or consult with an estate attorney to learn more. In many cases, states provide copies of needed applications online for you to print out and complete at home before visiting the court.
3. Send out Notice of Application. Most states require that you do your best to notify any potential heirs and interested parties of the person’s death and your intent to be executor. This can include putting an advertisement in newspapers and sending out notices to beneficiaries, creditors and others. Since these notifications must be done properly, you might want to consult the court or an estate attorney for help.
4. Go to Probate Hearing. If you are the most immediate relative to the deceased, the judge will likely appoint you with no issue. However, if closer relations exist, the judge will likely want a written letter from them stating they don’t want to serve in the executor role. Therefore, it is wise to get those letters in advance of the court date. The judge might have other questions for you and also might ask you to take or sign an oath to ensure you understand the importance of the job and will do your best to act properly.
5. Get a Probate Bond. If you are appointed as the estate executor, in many cases the court will require you to get a probate bond. Also known as a fiduciary or surety bond, this is a type of insurance policy against any mishandling of the estate by you. For example, if you mismanage money — intentionally or not — any affected parties can seek payment from the policy to recover the lost money. This bond also protects you if you are sued by beneficiaries accusing you of wrongdoing.
As you can see, the process of becoming an executor can be time-consuming and, at times, even confusing. While serving as executor has it challenges, remember that it is an important job and one the deceased would likely be grateful for you taking on. Our executor software can help you through the process, saving you both time and money.
To learn more about how we can create a custom, step-by-step plan for you to manage your executor duties and, if needed, connect you with an estate attorney in your area, please click here.