Santa Clara County Probate Lawyer: How to Become an Executor When Your Loved One Dies Without a Will

As a Santa Clara County probate lawyer, I commonly say, “If you don’t create your own will while you’re alive, the state will give you one when you’re gone.” What that means is that if a person dies without a will (called “intestate”) their estate will be administered according to state law. Likewise, the heirs who are entitled to receive any inheritance are also predetermined by state laws of succession. If there are no heirs, assets may ultimately become property of the state (though this is rare).

Who Is In Charge?

Whether a person dies with a will or intestate (without a will), there still needs to be someone in charge to oversee the deceased’s final affairs. If the deceased had a will, the person serving in this role is called the Executor. If a person dies without a will, a judge will appoint someone to administer the estate. Often this person is referred to as a Personal Representative or Administrator.

How Can I Become My Loved One’s Personal Representative?

If you’re interested in becoming a personal representative over your loved one’s estate, you’ll want to contact a probate attorney or take a look at the state’s probate rules to determine if you are eligible to serve and where you stand in terms of priority to serve. In most states, a surviving spouse is given first priority, with children to follow. From there, other family members may be considered. If you are low on the priority list but other family members do not want the job, you may be able to get written permission from them to “move ahead in line.”

Once it’s determined that you are eligible to serve, or that you have permission to serve from those who have priority over you, the next step is to formally petition the court by filing what’s generally called a Petition for Probate and a Notice of Petition to Administer Estate. With your filing you will likely have to pay a fee and provide a copy of the death certificate, an estimated value of the estate, and a detailed list (including names, addresses, and ages) of surviving heirs.

Can a Lawyer Help Me With this Process?

Probate can be a long and frustrating process, even for professionals. The laws of each state are different and one simple mistake could set the process of closing out your loved one’s final affairs back for months, and sometimes years. If you are concerned about going through probate on your own, it may be in your best interest to work with a probate attorney who can handle the court filings, manage legal deadlines, and help you avoid any liability with heirs for something unintentionally gone wrong.

If you would like to discuss becoming the administrator of your loved one’s estate who has recently passed away without a will, we’d be happy to speak with you. Contact our Santa Clara County probate law firm at (650) 422-3313 to schedule an initial consultation.