When someone dies without a will, the estate is administered according to the rules of intestacy. These vary by state, and set forth who is entitled to the estate's assets. They can also contain guidelines as to who can be the executor of an intestate estate. If no will is produced, the probate court will appoint an executor, sometimes called a conservator or personal representative. Anyone with good reason to be the executor can petition the court to be appointed, or else the court will appoint a professional trustee.
Qualify. Most states set fairly broad limits on who can serve as the executor of the estate. Generally, minors and convicted felons cannot. Other parties often prohibited from serving as an executor are non-citizens and business partners of the decedent. Anyone who is mentally unsound or is already subject to conservatorship (bankruptcy) is also barred. Beneficiaries and interested parties to the estate, however, are allowed to serve in this capacity.
File a petition. To be appointed executor, a petition must be filed. This can come from any interested party, which includes beneficiaries, or from the proposed executor themselves. In the petition, the proposed executor must declare whether he is a beneficiary of the estate, a creditor of the estate, his relation to the decedent (if any) and whether he is a resident of the county in which the probate proceedings will occur. Nonresidents will usually only be favored if there are no objections from interested parties and if their appointment is in the best interest of the estate.
Read More: What If There Is No Named Executor in a Will?
Post a bond (if necessary). Because the executor is responsible for the administration of the state's assets and could be liable for any losses incurred under their executorship, the court can require, or the petitioner may request, that the proposed executor post a fiduciary bond to cover any liabilities she might incur.
- The petition for appointment as executor is usually a form document, and is generally available from the probate court (see resources below).