Who Can Petition for Estate Administration when No Will Exists?

If the estate’s decedent dies intestate, without a valid will, you may need to file a petition to serve as administrator. Check the law in the state of the decedent’s estate to determine what type of estate administration is required and who may act as administrator. In many cases, the decedent’s surviving spouse or next of kin petitions for administration of the decedent’s estate.

In some states, informal administration is available whether or not the decedent left a will. If informal administration is not available in your case, you need to file a petition to serve as administrator. The formal estate administration process varies some by state, but under Massachusetts law, which is fairly representative, the following persons, in this order, may act as administrator unless the probate court decides to appoint someone else:

• The decedent’s surviving spouse.

  
  



• The decedent’s next of kin or their executors or administrators.

  
  



• If none of the above is competent, all renounce administration, or all neglect to take administration within 30 days after the decedent’s date of death, one or more of the decedent’s principal creditors.

  
  



• If no spouse or next of kin, a public administrator may be appointed.

  
  



• In practice, most probate courts allow a petition for appointment of a person not listed here if the surviving spouse or at least one of the next of kin brings the petition or assents. Trust companies, national banks, and even some foreign banks may also act.

  
  

Various states have their own additional criteria. For example, in many states, anyone with an interest in the estate who isn’t under indictment for, and hasn’t been convicted of, killing or helping to kill the decedent may file the petition. The commissioner of revenue may also file in certain circumstances. Check your local law for similarities and differences.

The procedure for allowance of a petition for administration carries with it all the same, or similar, requirements to the petition for probate of the will regarding interested parties, notice, return of service, and presentation for allowance. Whether or not the executor’s bond has sureties and whether personal sureties are acceptable in place of corporate sureties depends on different factors such as the existence of a will and on each court’s discretion.

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