The process is similar whether or not there was a will and requires court approval
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The first step of administering an estate is to file to become the executor. When the decedent (deceased person) died without a will and there is no executor, the person settling affairs is called an administrator. The process for filing to become a personal representative for an estate — to become an executor or administrator, depending on whether the decedent died testate vs intestate — is similar regardless of whether there is a will: You need to file a state-issued form with the local probate court to officially become the executor. You don't just declare yourself executor on your own.
If you’re creating an estate plan, you can use it as an opportunity to write a will and name someone in it you trust to serve as executor of your estate.
Certain people have priority to act as the personal representative of an intestate estate (when the deceased died without a will)
Before you file for executor of the estate, it’s a good idea to examine the makeup of the decedent's estate, since it can determine what type of probate is needed
You may be able to settle an estate with an informal probate procedure
Someone needs to administer a deceased person’s estate, whether or not they left behind a will. The executor, or personal representative, has a long list of duties they need to perform, like managing the decedent's property, tying up loose financial ends, like closing bank accounts, squaring debts, filing tax returns, and paying estate tax. They may need to consult with financial advisors and even an estate attorney if they need legal advice or help during the probate process.
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When someone dies without a valid will an executor, now called an administrator, is still required to fulfill all of these duties, which finally end with once the decedent's assets are distributed to the proper beneficiaries.
Learn more about executor vs administrator.
Every state is different, but filing to become executor in any state is generally similar whether or not there was a will. Follow these steps:
When you name an executor in your will, you can choose nearly anyone you want, including a beneficiary. But when someone dies intestate (without a will), state law usually prioritizes certain people to serve — like a surviving spouse or domestic partner. This is called priority appointment, and an adult child may be next in line to serve. A more distantly related blood relative can still be able to act as administrator by getting a written waiver of consent from people who have priority. In some states, a creditor may even be entitled to become estate executor after a certain amount of time has passed if no one else has stepped up to serve.
Before you file for executor, you should familiarize yourself with what assets the deceased left behind because it can inform your next move.
Most states have different types of probate processes, like formal probate and informal probate, and which one you need to use typically depends on the makeup of the probate estate. (If the estate is small, you may not even need to file to become executor and can use a small estate affidavit to distribute assets to beneficiaries instead.)
Learn about what types of assets are subject to probate.
After you know which type of probate proceeding is best for the estate, contact the probate court or check their website to download the right form or petition. If you have a will, you typically file for a letter of testamentary, and if there is no will you need to file for letters of administration in order to start settling the estate. You may have to wait a certain period of time after the decedent's death to begin the process so check with the court.
While every probate court varies, here are the most common things you’ll be asked to provide:
Basic information about yourself and the deceased
Copy of the death certificate
Estimated value of the decedent's estate
Names and addresses of the decedent’s heirs (surviving family members) and their relation to the decedent
Learn more about why you need a letter of testamentary during estate administration.
There may be a probate hearing if someone wants to challenge an appointed executor in a will or the person applying to become administrator, but usually this isn’t necessary. Executors may also have to attend court hearings if the estate is undergoing formal or supervised probate.
Many people who write a will waive the bond requirement for a named executor. To become executor without a will you usually have to post a bond, based on the value of the estate, but some states may allow you to skip it if you get a written waiver from all the decedent’s heirs. The executor bond is paid through estate funds and it is just one of a few different costs of probate.
Once someone is approved to become executor, the court will send official confirmation (letters of testamentary or administration), and then executors can begin settling the estate. Opening an estate account might be a good first step.
Keep in mind that as executor you have a legal obligation to act in the best interest of the estate, and beneficiaries and heirs can petition for your removal if you breach your fiduciary duty. You can consult with a probate attorney if you have more questions on what to do next.
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