Becoming an Estate Executor

Executor working on tablet

The decision to serve as an estate executor should not be taken lightly: it is a significant responsibility, and requires substantial effort.

Ideally, the decedent discussed the role with you beforehand and you knowingly agreed to serve (see Choosing an Executor), but in any case you can usually decline when the time comes if for some reason you choose not to serve (perhaps you don't have enough time, perhaps you are unable to handle the duties, perhaps you simply don't want the headache ... it doesn't matter). However, someone will have to serve in the role, and the court will appoint someone if necessary.

In Advance

If you know you are going to serve as an executor, there are a number of things you can do before the decedent passes away that will make your task significantly easier, in particular gathering information ahead of time with the estate owner's help rather than playing a detective game later (see In Advance for more information).

Taking the Reins

Once the estate owner passes away, you are entitled to act as executor of the estate if:

  • The will names you as executor
  • Or there is no will and you are first in line to serve according to state law (e.g., surviving spouse, child, other relative)
  • Or the local probate court has named you executor

Actually, if the estate is required to go through probate, you will need to be officially appointed executor by the probate court even if you meet one of the other criteria as well. That being said, there are some things you can do even before being officially appointed, and if the estate is not required to go through probate, you never need an "official" appointment.

Official Appointment

If the estate requires probate, or you want to go through the probate process anyway for the benefits of probate, there are several steps you must take to get officially appointed as estate executor:

  1. Petition for Probate: Start by filing a document normally called a Petition for Probate with the decedent's local probate court (see Probate Forms). If there is no will, the document will usually instead be called a Petition for Administration.
  2. Notice of Probate: Before the first probate hearing, you must notify all heirs named in the will, and any heirs who would inherit by state law if there were no will (even if there is a will).
  3. Probate Hearing: The court hold a hearing to officially consider and approve your appointment as executor. Often this hearing is just a formality, and you may not need to attend at all.
  4. Objections to Appointment: Note that interested parties have the right to legally challenge your appointment as executor (before your official appointment, or even afterwards), regardless of the reason for your executorship.
  5. Probate Bond: If required by the court, you must obtain a probate bond before officially becoming executor. Such a bond protects the estate from any losses you cause (up to a certain dollar amount), and requirements for the bond can depend on jurisdiction, size of estate, whether or not you reside in the same state, and other factors
  6. Letters: The final step in the appointment process, immediately following the probate hearing, is to receive your official documents from the court stating that you are the executor of the estate. These documents, sometimes known as Letters of Authority, Letters of Administration, or Letters Testamentary, are commonly referred to as your "Letters".

Other Paths to Becoming Executor

If no one exists who meets the default criteria to serve as executor (i.e., named in the will or in the default line of succession), or the applicable people refuse the responsibility, the court will appoint someone else (perhaps a professional, or perhaps someone who desires the responsibility but has no legal standing to demand it). In fact, the court is not always obligated to follow the desires of the will or the default succession in any case.

If you wish to serve as the executor but there are other people with higher priority than you, you can normally achieve your goal by submitting signed waivers of those other people, stating that they do not wish to serve (and even better, also stating that they'd like you to serve).

You can even serve as the executor without an official probate appointment if the estate is not required to go through probate: see Alternative to Probate.

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