Perhaps a relative of yours has passed away, and you would like to become executor of the estate. But your relative died without a will. You are asking: How can I file to become executor without a will?
First, it’s helpful to know what an executor is and does. Oklahoma state law says,
“The executor or administrator must take into his possession all the estate of the decedent, real and personal, except the homestead and personal property not assets, and collect all debts due to the decedent or to the estate. For the purpose of bringing suits to quiet title or for partition of such estate, the possession of the executors or administrators, is the possession of the heirs or devisees; such possession by the heirs or devisees is subject, however, to the possession of the executor or administrator, for the purpose of administration.”
In plain language, this means that when a person dies, the executor takes possession of all of that person’s property. If anyone owed the executor money, the executor may sue the debtor and take steps to collect the money. If the decedent owed anyone money, the executor is responsible for paying off the debt. The executor may also sell property of the estate, if he has the consent of all the heirs. After the probate process is completed, the executor is responsible for dividing the property among the heirs. If the executor mismanages the estate, the heirs may sue him, or may ask the court to remove him as executor.
If a person makes a will, generally, he will name an executor in his will. But obviously, if someone dies without a will (intestate) then, no executor will have been named. Also, if a person writes a will but doesn’t name an executor, then the question of how to file to be an executor will also arise under these circumstances.
Oklahoma law says that there is an order of preference for who should become the executor of an estate, if the decedent dies without a will, or does not name an executor in his will. The persons entitled to become executor are:
1. The surviving husband or wife, or a “competent person” that the surviving spouse requests.
2. The children.
3. The father or mother.
4. The brothers or sisters.
5. The grandchildren.
6. The next of kin entitled to share in the distribution of the estate.
7. The creditors.
8. Any person legally competent.
If several persons are equally entitled to become executor, relatives of the whole blood are preferred before relatives of the half blood. If several persons are still equally entitled to become executor, the judge may allow any or all of them to be executor. If a creditor wants to be executor, another creditor may ask the judge to appoint “any other person legally competent.”
There are certain people who are not allowed to be executor:
- The decedent’s business partner
- A minor child (if a minor is entitled to become executor, the minor’s guardian may become executor)
- A convicted felon
- A person “adjudged by the court incompetent to execute the duties of the trust by reason of drunkenness, improvidence or want of understanding or integrity.”
The Persaud Law Office has handled many probate cases. If you would like to become executor of an estate, and you wonder if you qualify, we may be able to help you. Contact us today if you want more information.