In the world of estate planning, all sorts of tricky circumstances can arise. This especially rings true when there is no will. We hope you never find yourself in this predicament, but we’ve got you covered just in case. In this guide, we investigate what happens when there is no will, and how it might impact your estate. We also explore some remedies, such as how to file for the executor role when there is no will.
What Happens If There Is No Will?
When someone leaves this world without having created a will, what happens to their estate? The technical term for this scenario is called intestate, or intestacy.
When someone dies intestate, their assets are frozen for a period of time. The court system uses this timeframe to comb through the estate of the deceased in detail. They then apply state intestate laws to determine the appropriate distribution of assets. Laws vary by state, so be sure to look up the specific intestate rules where you reside to get a better idea of how an estate might be distributed.
Although going through the probate process can be time-consuming and costly, there are some advantages. First, the court system will establish a hard deadline for any claims to be made by creditors. The typical timeline is three months, which cuts them off from filing claims after the fact. Second, the probate process provides checks and balances. When someone dies without a will, things can get complicated quickly. Family members won’t know who is the rightful heir to what, which can cause disputes. By following local intestate laws, the court system distributes property accordingly, making it difficult for any foul play to ensue. Our Dying Without a Will guide discusses possible outcomes in further detail.
Can You Have an Executor Without a Will?
Yes, you can have an executor without a will. Even when there is no will, someone has to manage the estate and figure out how property should be distributed. The individual must be appointed by the probate court before they can proceed. In the case where there is no will, the appointed person is referred to as the “administrator.”
Who Can be an Executor of a Will?
In most cases, direct family members of the deceased can serve as executors of a will. When there is no will, you can volunteer to serve as the administrator. The rules on who can serve as an administrator vary by state. In general, probate courts appoint administrators in this order of priority:
Surviving spouses
Adult children
Siblings
It’s best to check with your state to determine who is eligible to serve as an executor or administrator of an estate, and what order of priority is given.
How To File for Executor of Estate Without Will?
When there is no will, figuring out who should be the executor or administrator can be a difficult process. Without any instructions, it’s tough to know who the deceased would have entrusted to manage the estate. There’s also a priority order given by the probate courts, so even if you wanted to step up to the role, you could have a hard time getting appointed. This level of uncertainty can cause strife amongst family members, especially when more than one person wants to volunteer.
It’s best to have open and honest communication with your family members. If you’d like to volunteer to serve as the administrator, but you’re not at the top of the priority list, you’ll need the buy-in from those who are.
For example, let’s say that you are the older brother of the deceased, who battled an illness before passing. You had extensive conversations about how he wanted to pass on his estate, but unfortunately none of it was documented. They have a surviving spouse, one adult child, one minor child, and you were their only sibling. In the absence of a will, intestate laws would typically give priority to your brother’s wife to serve as the estate administrator. If she declined, the role would be offered to his adult child. However, you feel strongly that you are best fit for the role. You feel confident that you can carry out your brother’s wishes, and you’d also like to relieve some burden from his grieving wife and children. In this case, you’d need to get permission from his wife and adult child in order for you to step up to the plate.
If you’d like to file as the executor of an estate with no will, we’ve outlined 6 steps for you to follow:
1. Find out your place in line.
Intestate rules vary from state to state, including rules on who can be appointed as an administrator of an estate with no will. Discussed earlier, the priority order is typically as follows: the surviving spouse, any adult children, direct siblings.
2. Obtain waivers from other family members.
If you want to volunteer to serve as the administrator but there are other family members who have priority before you, you must obtain written consent from them. In our example above, we pretended that you’re the older brother of the deceased. You must get written statements from your brother’s wife and adult child ceding the role to you.
3. Contact the court.
Once you’ve obtained permission from family members, contact the probate court located in the county that the deceased lived in. In this step, you’ll find out their filing requirements and timeline.
4. File your administration petition.
Typically, probate courts require you to submit a petition for probate and petition to administer the estate. Along with an administration fee payment, you’ll be required to submit the deceased person’s death certificate, their estimated estate value, and names and addresses of their heirs.
5. Go to the probate hearing.
You may or may not be required to attend a probate hearing, depending on the jurisdiction. In most cases, a hearing will only be required if you’re not a direct relative, or if anyone decides to contest your decision to volunteer. You’ll also be given an oath recognizing your fiduciary duties.
6. Get a probate bond.
Last but not least, you’ll need to secure a probate bond. This is common legal practice that protects the interest of the estate and family members. The bond also ensures that you will carry out your fiduciary duties in full.
Protect Your Estate - Create Your Will Today
The key takeaway here is that leaving an estate with no will can create complications. When there is no will, the estate is automatically subjected to probate, and someone must take on the role of the administrator. Petitioning to serve as the administrator is an involved process. It can even lead to family strife if you can’t come to an agreement about who is fit to serve.
At the end of the day, the best way to protect your estate is to create a will. By establishing an estate plan, you’re ensuring that your loved ones can avoid confusion and conflict in case anything unexpected happens. Many people drag their feet on creating a will because of a misperception that it’s an expensive, painstaking process. However, you can use a will creation service provider like Trust & Will. Not only can you do it all online, it’s quick, easy, and cost-friendly. If you’d like to set up your will today!
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