Since many people die without a will in place, they haven’t legally picked an executor to handle their final affairs. These affairs may include closing accounts and distributing financial assets and property. Probate laws vary by state.
Prepare for the steps you’ll likely need to take after being named the executor of an estate by reading this article.
What is an Executor of an Estate?
Before you decide to take on the various duties involved with becoming an executor of another individual’s estate, you may want to know what exactly an executor does first.
An executor of an estate, or administrator, is the individual in charge of managing and distributing all of the properties included in a deceased or incapacitated individual’s estate. The term “estate” may refer to the individual’s real property, personal belongings, and other assets.
In addition to these tasks, the executor is also responsible for paying off any debts and taxes of the estate, notifying certain individuals and institutions about the person’s death. In some instances, they may even have to go to court to defend the estate against a lawsuit.
How Can I Become an Executor of an Estate?
In general, the most common way for a person to become the executor of an estate is by being selected by the individual who is creating the will (i.e., the testator). Normally, the testator will choose a person related to them, such as a parent, child, or another close relative of the testator.
Sometimes, the testator may even appoint a close friend as their executor, or another professional like a lawyer or an accountant.
Additionally, the testator may appoint only one executor or select multiple individuals to undertake the role.
While there are other requirements involved in becoming an executor, the two most important things that the individual must have is that they are of age, which means at least 18 years old, and that they have not been convicted of a felony.
What if Someone Else Wants to be an Executor?
If the deceased person hasn’t selected an executor via a will, talk to family or close friends to see whether they feel the role should fall to them. It’s also important to determine whether the deceased person unofficially named an executor. Courts have the final say when no executor exits, but they will generally pick interested candidates based on their relationship with the deceased.
Usually, spouses, partners, children, grandchildren, parents, siblings, nieces, or nephews are first in line to be executors. If no family member is interested, a creditor can apply.
What Steps Do I Need to Take to Formalize Becoming an Executor?
When the testator chooses someone to become the executor of an estate, the person chosen will need to go to court to formalize the process of becoming the designated executor. In general, to get officially appointed, the individual will be required to complete the following process:
- Obtain a copy of a form requesting to become executor;
- Fill out the form and any necessary supplemental documents;
- Get the form notarized by an authorized notary public;
- Return the form and file it with the Clerk of the Court (this does require payment of a filing fee); and
- Send the Notice of Application to any individual interested in the estate, such as heirs or beneficiaries.
What Happens If an Individual Dies Without Naming an Executor?
When an individual becomes deceased without naming an executor, several different things might occur depending on the applicable laws in that jurisdiction and the certain facts involved in the situation, such as whether or not the individual has created a will.
In cases where a person has a will but does not name an individual to become their executor, the court may appoint one. The court may choose an individual by reviewing the intestate succession laws of the relevant state.
It is important to note that every state has its own intestate succession laws, so the results of each case may vary depending on the laws of that state.
These laws dictate how to distribute the deceased individual’s estate and provide a list of the relatives eligible to become the executor if the deceased did not name one or does not have a valid will.
In such cases, most state statutes list the deceased’s surviving spouse or partner as the first person to be appointed as the estate’s executor. After spouses or partners, adult children are the next ones in line who can be appointed by the court to serve as the executor.
Can I Become the Executor If I Am Not the Spouse or an Adult Child of the Deceased?
Suppose a situation occurs where no spouses or adult children are available to be appointed as the executor. In that case, there is a possibility that the court will look to a close relative, friend, or professional of the deceased.
Again, this will be determined according to the priority list set out in the applicable laws of the particular state. The state may have a list that provides other instructions when such a scenario arises, including a long list of eligible people to become the executor.
Will I Have to Make Payments to Ensure the Value of the Estate?
In some states, the proposed executor is required to post a surety bond. This type of bond insures the value of the testator’s estate against any mistakes that the executor might make when carrying out their duties, including not obeying their responsibilities at all.
What Happens If My Petition is Contested?
If a petition for an executor is contested, then a hearing will typically be required so that both the petitioner and the challenger can present their cases.
These are often difficult matters, and as such, a person attempting to fight a challenge against their executorship request should contact a probate attorney for further guidance.
What Complexities Might I Run Into?
If you become the executor of an estate without a will, you should know that this is a complex process. The complexity of this role depends largely on the size of the estate itself. If the estate is relatively simple with few assets, it shouldn’t take more than a few months for things to work themselves out.
However, for more complicated estates, becoming the executor of an estate could stretch on for years. For this reason, make sure that you fully understand the responsibilities of becoming the executor of an estate before you commit to it.
Should I Speak to an Attorney Before I File for Executorship?
Suppose you have been appointed executor of an estate and need to apply to formalize your executorship. In that case, you should strongly consider contacting a local estate lawyer for assistance.
Becoming an executor of an estate can be extremely complicated. The process for applying can be confusing, but the duties of an executor are a lot to handle. Hiring an experienced estate attorney will help to ensure that you do not violate any laws or forfeit your application in the process due to errors.
Additionally, a lawyer will go over your rights, responsibilities, and other procedures involved with becoming an executor of an estate.
