How to File to Be Executor of an Estate Without a Will
A will has an important function beyond providing instructions for the distribution of property. It also names the person who will serve as the executor of the estate.
That person is responsible for handling the probate process, which can include:
- Gathering the estate assets
- Paying the final bills
- Filing income tax returns
- Distributing the decedent's property and remaining assets
When someone dies without a will, the legal term is “dying intestate." In this situation, no one has the legal authority to close the decedent's estate.
Who Can Handle The Decedent's Estate?
A probate court judge can select someone to perform these duties or a loved one can volunteer to fill the vacancy. That volunteer will need to file with the probate court to be appointed as the administrator of the estate.
Once the court process is complete, the court-appointed representative is known as the "Personal Representative" of the estate. The duties performed by an administrator are essentially the same as an executor, and both are referred to as Personal Representatives.
Who Can't Be a Personal Representative?
State laws also prohibit some people from serving as an administrator.
- In some states, an administrator must be a U.S. resident. Texas takes it one step further: you must be a resident of that state.
- An administrator cannot be a minor (under the age of 18 or 21, depending on the state).
- The administrator must be mentally competent.
Additionally, states may have other requirements. In many states, a person who has been convicted of a felony cannot fill the role, even if it occurred many years ago. But some states don't automatically disqualify a person. It depends on the facts of their crime. Florida requires the administrator to be a relative or the spouse of a relative.
The probate court also has the option of finding a candidate unsuitable.
You May Need a Written Waiver From Other Candidates
If you want to be the administrator but you are not high on the priority list, you may need to receive a written waiver from other candidates for an administrator who has higher priority. For example, if you are the brother of the deceased, you may need to get a written waiver from the deceased's spouse and children before you can be appointed administrator.
Steps To Become a Personal Representative of an Estate
These are the basic steps that must be followed in order to file to become the personal representative of an estate.
Because the process of applying for and being appointed as administrator can take a month or more to complete and there may be an urgent need for estate management, there is also a process for an emergency appointment.
1. Understand Your Priority for Appointment
The state probate code provides guidance on who is entitled to be named as the administrator of an estate and the preferred order of appointment. That order often follows the order of intestate succession.
For instance, a surviving spouse is usually the first choice to fill the role. If they decline, the decedent's children are next in line. When there is no spouse or children, then other family members may be selected — grandchildren, parents, siblings, nieces or nephews, grandparents, aunts or uncles, in that order.
If family members heard the decedent say they wanted a particular person, or someone says they were asked to do the task even though it wasn't written down, that may have weight with the court.
If more than one person with priority wants to serve as administrator, and the heirs can't agree, the probate court judge will choose likely after a hearing.
In some states, when no family member comes forward the probate court judge may choose a non-family member or even a creditor of the decedent's estate.
If there are no interested and qualified family members, heirs, or creditors, then a public administrator may be appointed by the court. This person is a government employee whose job is to distribute the estate of county residents who die without a will or without an executor.
2. Determine Where to File to Administer the Estate
For most people, filing a petition with the appropriate probate court is a simple legal process. You file in the county in which the deceased person resided aka where their home is located. But suppose they don't own real estate? Maybe they live on a boat and move about. Maybe they are living with another person in that person's apartment.
If the decedent owned tangible assets somewhere, that is generally where probate should be filed.
What if the deceased person owned only intangible assets — bank accounts and retirement funds, for example. Then the estate can be opened in the county where they lived at the time of death.
What if they owned real estate in a county other than where they were living at the time of death? In this case, the estate should be opened in the county where the real estate is located. If they have property in more than one county, check your state probate law. This may vary.
What if they owned real estate in another state or in more than one state? You may need to file probate in the state where they were living at the time of death to distribute personal property but also conduct “ancillary probate" in states where real estate is located.
As you can see, there can be any number of complicating factors. You may need to consult a probate attorney to understand where to file.
3. Research the Filing Requirements of the County
You may need to file a number of forms with the probate court, including a Petition for Probate and a Notice of Petition to Administer Estate, and more. Contact your county probate court to understand their filing requirements and timelines. Ask for a Petition for Administration.
4. File the Petition for Administration
While the Petition for Administration can vary from state to state, the forms usually ask for the decedent's name, birth date, date of death, last known address, an estimate of the value of the estate, and the names and addresses of the decedent's legal heirs according to the intestacy laws governing your state.
There will be a number of other forms accompanying this document, such as the Notice of Petition for Probate, a form summarizing the duties and obligations of the administrator/personal representative, and a form explaining the order for probate. You will need to sign these forms to signify that you understand what you are signing up to do.
You may need a death certificate and some courts will ask for copies as well as an original.
You may need to provide a photo ID and will be asked to pay a filing fee to petition for administration. This fee, and other expenses you incur in the probate process, may be reimbursable from the estate.
5. Notice of Petition to Administer Estate
People who could be heirs by intestate succession and those who could serve as executors of the estate need to be notified that you have asked the court to assign you to that role. Depending on the laws of your state, this may be done in a few ways, including by first class mail or hand delivery, and with notice in a newspaper.
If you have to file a Notice of Petition for Administration with the court, you may have to include the names and addresses of the people to be contacted. You may have to make a reasonable effort to locate the address of each person and will need to file an affidavit to tell the court what steps you took to find them.
If the deceased person was a citizen of a foreign country, notice must be sent to the U.S. office of a recognized diplomatic or consular official of that country. You can learn more about giving notice further down in this article.
6. File Bond
In some instances, a bond is required to be paid by estate administrators to protect the heirs and creditors from potential financial losses from wrongdoing by the administrator. The amount of the bond depends on the estimated value of the decedent's personal property, real property, and gross income of the estate property.
In some states, a bond can be reduced if the administrator asks for limited authority, so any real property cannot be sold without a court order. The administrator could also agree to deposit cash or securities not needed for estate administration into a blocked account from which it can't be withdrawn without a court order.
Bond may be waived if all heirs sign a waiver and the waivers are attached to the Petition for Probate.
7. Attend the Probate Hearing
In some states and in certain cases, a hearing will be required. At the hearing, the probate court judge will choose or approve the estate administrator. Some states do not require a formal hearing unless there is a contest to select the administrator or the administrator is not next-of-kin.
Administrators are commonly given an oath recognizing their fiduciary duties to the estate and the court. After the hearing, sign the Order for Probate and Letters of Administration with the court clerk and get certified copies.
Emergency Appointment of a Special Administrator
There are some situations in which an estate requires timely action and cannot easily be put on hold for 4-6 weeks before someone is given legal authority to act. In this case, the court has an expedited process.
The would-be executor can file a separate Petition for Letters of Special Administration along with the Petition for Probate. When approved by the judge, this authorizes a temporary special administrator to act for a specific purpose. A form will be required stating the reason why a special administration is needed and what specific powers are needed.
For example, if the deceased person operated a business, employees may need to be paid. If the decedent worked in real estate and had funds in escrow that needed to be released, a special administrator could do so.
You may need to meet with the probate staff attorney to review your documents for accuracy and completeness. The probate staff attorney may be the person who presents the petition to the probate judge and you can pick up a signed Letters of Special Administration.
The special administrator is granted very specific powers and for a very limited time. Typically, their authority ends at the first probate hearing when an administrator/executor is appointed for the general administration of the estate.
Methods of Giving Notice Yourself
In many states, the probate court handles the notice and service process, but if you have to file the appropriate notices yourself, it may be similar to the following processes:
Notification By Mail
In some states, at least 15 days prior to the first probate hearing, everyone who needs to be notified of probate should receive a copy of the Notice of Petition to Administer Estate. This document should include the hearing date information. It's recommended by the courts that they also receive the Petition to Administer Estate with all attachments, though this is not always required.
In some states, if you are asking to be appointed as the administrator, you can't execute this mailing. You will need someone else to do it for you, someone who has no interest in the estate. After notice is mailed or delivered, that person will need to complete and sign a Proof of Service by Mail document.
The would-be executor can then file the Proof of Service form with the probate court.
Notification By Newspaper Publication
In some states, a copy of the Notice of Petition to Administer Estate must be published in the legal notice section of a general circulation newspaper in the community where the decedent resided.
Review the website of your county probate court, or ask the court clerk for instructions on:
- The timing of this publication in relation to the probate hearing date,
- The number of times notice must be published, and
- Which newspapers in your area qualify as general circulation newspapers.
There will be a charge from the newspaper for this service. It is reimbursable from the estate.
Need Legal Advice About Serving as an Executor? Ask a Lawyer
Serving as the executor of an estate is an important responsibility. Consult with an experienced local probate and estate attorney to understand the duties you will need to fulfill for a person who died without a will. It will be especially important to speak with a lawyer if you have questions about where to file for probate for the decedent's estate so you file in the right county and avoid wasting time and money.
Can I Solve This on My Own or Do I Need an Attorney?
- Complex probate situations usually require a lawyer
- A lawyer will take these matters seriously and enforce protections
- Get tailored advice and ask your legal questions
- Many attorneys offer free consultations