Not only does a will outline how one’s assets should be divided upon death, but it also serves another crucial purpose. The document also specifies who will act as the estate’s executor. However, there are many unforeseen complications that can develop in the estate planning process. This is especially true in cases where a person has passed away without leaving a will. Many people pass away without having formally appointed an executor to handle their final affairs, which might entail things like closing bank accounts, dividing up property, and going through the probate process. If the person who died didn’t have a valid will, the probate court will appoint a personal representative to handle the estate. But without a will, how can one take on the role of executor? What is the process involved in becoming an estate executor without a will? Let’s find out….
What Occurs in the Absence of a Will?
What happens to a person’s estate if they pass away without making a will? The legal term for someone who passes away without leaving a will is “dying intestate.” Nobody in this situation is able to legally close the decedent’s estate.
Generally, when someone passes away intestate, their assets are temporarily frozen. During this time, the court system thoroughly examines the decedent’s estate. The proper distribution of assets is then determined by using state intestacy laws. Hence, to better understand how an estate might be distributed, be sure to research the specific intestacy laws in your state of residence. This is necessary since intestate laws vary from state to state.
Despite the fact that it can be expensive and time-consuming, the probate process has some benefits. The court system will first set a strict deadline for the filing of any claims by creditors. They can’t file claims after the fact because they usually have three months to do so. The probate procedure also offers checks and balances. However, if there is no will, things can quickly become complicated. In addition, family members may disagree because they won’t know who is the true heir to what. The court will be the one to save the day in this situation. The court system distributes property in accordance with local intestacy laws, making it difficult for any wrongdoing to occur.
Is it Possible to Have an Executor Without a Will?
You can appoint an executor without a will; so, the answer is yes. Even in the absence of a will, someone must oversee the estate and decide how to divide the assets. Before they may proceed, the probate court must therefore appoint the person. The chosen individual is referred to as the “administrator” when there is no will.
Read Also: POWER OF ATTORNEY VS EXECUTOR: Difference Between Power of Attorney & Eexecutor
Who May Serve as Will’s Executor?
Executors of a will are generally allowed to be members of the decedent’s immediate family. You can offer to act as the administrator if there is no will. Admin eligibility requirements differ from state to state. Typically, probate courts choose administrators in the following hierarchy of importance:
- Surviving spouses
- Adult children
- Siblings
It is best to verify with your state to find out who is qualified to act as an estate’s executor or administrator and what priority is given.
Becoming Executor of Estate Without a Will- Steps to Follow
While state laws regarding probate can differ, reading this to the end can help make sure you’re ready for the responsibility of becoming an executor as well as handling an estate in the event of someone’s death without a will. Those procedures typically consist of the following:
#1. Find out if Anyone Else is Interested in Being the Executor
Even if the deceased didn’t name an executor in their will, that still doesn’t imply they didn’t ask someone to manage their estate after they passed away. So, ask your loved ones and close friends if they believe they should fill the position or if the dead had an unofficial nominee. In the event that there is no will, the court will have the final word. But it will usually choose an interested party based on how close they were to the person who died. It will basically be in the order of spouse or civil union partner, child, grandchild, parent, sibling, niece, and nephew.
On the other hand, if no living relatives are left or are interested, a creditor or other interested party may submit an application. However, you should understand that, legally, you can only be an “executor” if your name appears in a will. If the court picks you, you will be called an “administrator” or something similar. Regardless, the function and responsibilities of the executor remain the same.
#2. Create a Probate Petition.
Filling out paperwork with the probate court in the deceased person’s county is the very first step in becoming the estate executor without a will. Usually, you need the original death certificate, an estimate of how much the estate is worth, and a list of any living family members and beneficiaries. Additionally, you should prepare to complete an application (an appointment as an executor form), pay costs, and provide identification documentation, such as a driver’s license or passport. To make this easy, it is advisable to call the probate court clerk and find out what paperwork is required. You may also speak with an estate lawyer to learn more. The good news is, most times, states make copies of necessary paperwork available online. Hence, you can just print them off and fill them out at home before going to court.
#3. Send out Notice of Application
Most states require that you do your best to inform potential heirs and others who may be interested in the death of the decedent of your plans to be the executor. This could mean putting an announcement in the newspaper and telling beneficiaries, creditors, and other parties. You may need to get help from the court or an estate lawyer because these announcements need to be done right.
#4. Attend a Probate Hearing
If you happen to be the deceased’s closest relative, the judge will probably appoint you without any problems. However, if there are closer ties, the judge will probably want a formal letter from them saying that they do not wish to act as the executor. So it makes sense to obtain those letters before the court date. In order to make sure you understand the significance of the position and will do your utmost to act appropriately, the judge may ask you further questions and request that you swear or sign an oath.
#5. Purchase a Probate Bond
If you are chosen to be the executor of an estate, the court will often order you to get a probate bond. This is a type of insurance that protects the estate in case you don’t take good care of it. It’s also called a fiduciary bond or a surety bond. For example, if you mishandle money on purpose or by accident, the people who lost money can use the policy to get their money back. Also, if beneficiaries sue you based on false claims, this bond will protect you.
As you can see, the procedure for becoming an executor without a will can be drawn out and perhaps quite perplexing. Although having the role of executor comes with problems, keep in mind that it is a crucial task that the deceased would probably appreciate you taking on.
How Do You Become Executor of an Estate in PA?
An executor is a person designated in a decedent’s will to manage the estate in the state of Pennsylvania. To take on the role of executor for a deceased relative’s estate, you must be specifically specified in their will.
How Do You Probate an Estate Without a Will in Alabama?
File a Petition with the Alabama Probate Court
In the first petition, you ask the court to appoint someone to serve as the personal representative of the estate. Letters of Administration are the legal papers that are usually used to name a personal representative when a person dies without leaving a will.
How much Does an Estate Have to be Worth to Go to Probate in Oklahoma?
If the value of the deceased person’s probate personal property (not including real estate) is less than $50,000, the deceased person’s heirs can use a Small Estates Affidavit to get probate property without going through probate. Even if the person who died owned a house, this is still true.
How Much Does an Estate Have to be Worth to Go to Probate in NC?
If the surviving spouse gets everything according to state law, this approach applies to estates with personal property valued at $20,000 or $30,000, respectively. If the surviving spouse is the only heir, North Carolina also has a streamlined probate procedure known as summary administration that applies.
What Debts are Forgiven at Death?
Who or what will pay off your debts when you die? Most of a person’s debts are paid by their estate after they die. Federal student loans and maybe some private student loans are forgiven when the person who took out the loan dies.
Who Decides if Probate is Needed?
If there are no direct descendants who can take over the estate, the courts will decide what to do. If the person who died didn’t have a valid will, their estate would almost certainly have to go through the legal process of probate before it could be given to other people.
What Happens to a Bank Account When Someone Dies Without a Will?
In the event that there are no heirs, the courts will decide what to do with the estate. But if there is no will, the estate will have to go through probate before any of it can be given to other people.
What Happens if You Don’t Need Probate?
Even though the law doesn’t require probate, if the person who died owned property that wasn’t set up to avoid probate, the beneficiaries cannot legally own the property until probate is finished. But there are a few exceptions to this rule that stand out.
How Do You Avoid Probate?
Here are the top three ways to avoid Probate;
- Write a Living Trust.
- Name Beneficiaries on Your Retirement and Bank Accounts.
- Hold Property Jointly.
Conclusion
We all know that becoming the executor of an estate without a will entails significant responsibility. If the deceased did not leave a will, it is important that you speak with a local probate and estate attorney who is familiar with the legal requirements for handling such cases. Probate of the decedent’s estate can also be complicated, so it’s best to consult a lawyer if you’re unsure of which county to file in.
Becoming Executor of Estate without a will FAQs
How do you avoid probate in Washington state?
In Washington, you can set up a living trust to keep real estate, bank accounts, cars, and other assets out of probate. You need to write a trust instrument, which is like a will, to name a person to take over as trustee after you die (called a successor trustee).
Do you need to go through probate to sell a house?
You can’t legally sell a property that was owned by a person who died before probate was issued unless your name was already on the title documents at the time of death.
In South Carolina, how does one go about being an appointed executor?
Either hire a South Carolina probate attorney or contact the court in the county where the decedent lived to schedule a meeting with the probate court clerk to initiate the estate process.
Related Articles
- CREATING A WILL: Step-by-Step Guide
- What Does Executor of Will Do: Responsibilities and Limitations
- Probate Sale: Best Real Estates Practices And All You Need.
- LIVING TRUST VS WILL: Best option in the US (+Major differences)
- DISSOLUTION OF TRUST: Meaning & How it Works
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