How To Be a Personal Representative of an Estate Without a Will

A last will and testament does more than provide instructions for the distribution of property to beneficiaries. It also names the person who will serve as the executor of the estate at the decedent's death. Appointing a person to handle your estate after you die is a crucial part of the estate planning process.

A last will and testament does more than provide instructions for the distribution of property to beneficiaries. It also names the person who will serve as the executor of the estate at the decedent's death. Appointing a person to handle your estate after you die is a crucial part of the estate planning process.

The executor is responsible for handling the probate process, which can include:

  • Gathering the estate assets
  • Paying the final bills
  • Filing income tax returns
  • Filing any estate tax returns, if necessary
  • Distributing the decedent's property and remaining assets

When someone dies without a valid will, the legal term is "dying intestate." It's an estate without a will. In the case of an intestate estate, no one has the legal authority to close the decedent's estate.

Who Can Handle the Decedent's Estate?

For an intestate estate, a probate court judge can select someone to perform these duties, or a loved one can fill the vacancy. That interested person must petition the probate court to appoint them as the estate administrator.

Once the probate court process is complete, the court-appointed representative is known as the "personal representative" of the estate. The duties of a personal representative are essentially the same duties an executor performs for a testate estate (an estate where there's a will).

Who Can't Be a Personal Representative?

State laws prohibit some people from serving as an administrator.

  • An administrator cannot be a minor (under 18 or 21 years old, depending on the state).
  • In some states, an administrator must be a U.S. resident. Texas, for example, takes it one step further and requires an administrator to be a state resident.
  • The administrator must be mentally competent.

Additionally, states may have other requirements. In many states, a person convicted of a felony cannot fill the role, even if it occurred many years ago. But some states don't automatically disqualify a person due to a felony conviction. It depends on the facts of their crime. The probate court can also find a candidate unsuitable to probate the estate without a will.

You May Need a Written Waiver From Other Candidates

If you want to be the administrator but are low on the priority list, you may need a written waiver from other candidates with higher priority. For example, if you are the deceased's brother, you may need a written waiver before being appointed the administrator. This waiver may come from the deceased's spouse and adult children.

Steps to Become a Personal Representative of an Estate

There are basic steps to file to become the personal representative of a deceased person's estate. The process of applying for and being appointed as administrator can take a month or more to complete. In some instances, there may be an urgent need for estate management. Thus, there is also a process for an emergency appointment.

1. Understand Your Priority for Appointment

The state probate code outlines who is entitled to be named administrator of an estate at the decedent's death. State law also provides 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 adult child, 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, that may carry weight. Or if someone said the decedent asked them to do the task, even though it wasn't written down, that may persuade the court.

If more than one person with priority wants to serve as administrator, and the heirs can't agree, the probate court judge likely will choose an administrator after a hearing.

In some states, the probate court judge may choose a nonfamily member or a creditor of the decedent's estate when no family member comes forward.

The court may appoint a public administrator if there are no interested and qualified family members, heirs, or creditors. This person is a government employee whose job is to distribute the estate of county residents who die without a will or executor.

2. Determine the Proper Probate Court

For most people, filing a petition with the appropriate probate court is a simple legal process. You file in the county where the deceased person resided. This is typically the location of the decedent's home.

But suppose the decedent's assets don't include real estate? Perhaps 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, open the probate estate there.

What if the deceased person owned only intangible assets, such as bank and retirement accounts, and life insurance payable to the decedent's estate? The personal representative can open the estate in the county where the decedent lived at the time of death.

What if they owned real estate in a county other than where they lived at the time of death? In this case, the personal representative should open the estate in the county where the real estate is located. Check your state probate law if the decedent owned property in more than one county. State laws may vary.

What if they owned real estate in another state or more than one state? You may need to file probate in the state where they lived at the time of death to distribute personal property. An estate in this situation may also qualify for an "ancillary probate." This would occur 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. A probate lawyer can explain your legal options for the probate estate.

3. Research the County's Filing Requirements

You may need to file several forms with the probate court, including:

  • A Petition for Probate
  • A Notice of Petition to Administer Estate
  • Other documents necessary under state law

A probate estate may sometimes qualify for a small estate procedure under state law. Contact your county probate court to understand their filing requirements and timelines.

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
  • The names and addresses of the decedent's legal heirs according to your state's intestacy laws

Other forms will accompany this document. These documents can include the Notice of Petition for Probate. This legal document summarizes the duties and obligations of the administrator/personal representative. A form explaining the order for probate is also common. You must sign these forms to signify that you understand what you are signing up for.

You may need a death certificate. Some courts will ask for copies as well as an original.

You may need to provide a photo ID and pay the filing fee to file your petition for administration. Expenses you incur in the probate process may be reimbursable from the estate.

5. Notice of Petition to Administer Estate

You must notify people who could be heirs by intestate succession that you seek the personal representative role. Depending on the laws of your state, you may provide notice in several ways. The following are common methods of notice:

  • First-class mail
  • Hand delivery
  • Notice in a newspaper

If you file a Notice of Petition for Administration with the court, you may have to include the names and addresses of interested parties. You must make a reasonable effort to locate each person's address and 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, you must send notice 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 a Bond

Sometimes an estate administrator must pay a bond to protect the heirs and creditors from potential financial losses due to wrongdoing by the administrator. The bond amount depends on the estimated value of the decedent's:

  • Personal property
  • Real property
  • Gross income of the estate property

In some states, the court can reduce the bond if the administrator asks for limited authority. In such cases, a personal administrator cannot sell real property without a court order.

The administrator could also agree to deposit cash or securities into a special account. Withdrawal from such an account would require a court order. If all heirs sign a waiver, the court can waive a bond. The administrator attaches the waiver to the Petition for Probate.

7. Attend the Probate Hearing

Some cases require a probate hearing. The probate court judge will choose or approve the estate administrator at the hearing. Some states do not require a formal hearing. It will only be necessary if there's a contest to select the administrator or if the administrator is not next of kin.

Administrators take 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

Sometimes, an estate requires timely action that cannot be delayed. Some situations require action before the 4-6 weeks required to appoint a personal administrator with legal authority to act. In this case, the court has an expedited process.

The would-be personal representative can file a separate Petition for Letters of Special Administration and a Petition for Probate. When approved by the judge, this authorizes a temporary special administrator to act for a specific purpose. The probate court must receive information explaining why a special administration is needed and the powers required.

For example, employees may need to be paid if the deceased person operates a business. 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. The individual petitioning the court can pick up signed Letters of Special Administration when ready.

The special administrator receives specific powers for a limited time. Typically, their authority ends at the first probate hearing. At the hearing, the court appoints a personal representative for the general administration of the estate.

Methods of Giving Notice Yourself

In many states, the probate court handles the notice and service process. In others, the personal representative must file the notices.

Notification by Mail

In some states, at least 15 days before the first probate hearing, everyone notified of probate should receive a copy of the Notice of Petition to Administer Estate. This document should include the hearing date.

In some states, you can't execute this mailing if you seek an appointment as the administrator. You will need someone else to do it for you. This individual must have no interest in the estate. After notice is mailed or delivered, that person must 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

Some states require publishing a copy of the Notice of Petition to Administer Estate under state law. The personal administrator must publish this notice in the legal notice section of a general circulation newspaper where the decedent resided.

Review the website of your county probate court or ask the court clerk for instructions on the following:

  • The timing of this publication concerning the probate hearing date
  • The number of times notice must be published
  • Which newspapers in your area qualify as general circulation newspapers

There will be a charge from the newspaper for this service. It is reimbursable by the estate.

Need Legal Advice About Serving As a Personal Representative? Ask a Lawyer

Serving as the executor of an estate is an important responsibility. Consulting with an experienced local probate and estate attorney to understand the duties is the only way to ensure you fulfill the obligations.

Some states require legal counsel to open an estate. It will be essential 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 correct court.

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