Dad Just Died Without a Will… Now What?

Old boots“You can’t be forced to take on the burdens of the administration of an estate, merely because you are an heir.”

If your father died suddenly of a heart attack in New Jersey without a will – but had a home with a second mortgage, a vehicle and significant credit card debt – what would you need to do? A recent nj.com’s post asks “Who is responsible if dad dies with no will?”

Needless to say, when someone dies without a will and leaves nothing to guide their heirs, things can get complicated. But the process of being appointed as executor if there’s a will (or as administrator if there’s no will), typically isn’t that difficult or expensive.

Bonds are typically waived for executors, but many times administrators must post a bond. The bond amount is derived from the value of the estate. If you’re appointed as an executor (or as an administrator of your father’s estate), it doesn’t make you personally responsible for any of his unpaid debts or obligations. You can’t be forced to take on the burdens of administration of an estate, merely because you are an heir.

However, once you agree to serve and you’re appointed as an executor (or an administrator) by the court, you can’t just bail. You’d have to have the court’s okay to resign. A successor fiduciary would then need to be appointed.

When there’s real estate involved—in this case the father’s home—and you’re an heir of the estate, when the foreclosure of the mortgage is started, the heirs will likely be named in the proceedings—regardless of whether you’re an executor (or an administrator). But you don’t necessarily have to respond to the pleadings.

If no family member is willing to serve as a fiduciary to administer the father's estate, and with assets in the estate to be administered and debts to be paid, the court most likely would appoint an attorney to serve in that capacity. In New Jersey, the statute says creditors can also apply for the job. The administrator is paid from the sale of the assets.

Assuming that the father in this example wasn’t married at the time of his death, his only children are three siblings and there was no will, each sibling would be entitled to a one-third share of his estate based on the laws of intestacy. They’d also each be entitled to be appointed and to act jointly as administrators of his estate. However, any one or two could renounce in favor of the other(s). This has no effect on that person’s one-third share of the estate.

Reference: nj.com (February 23, 2017) “Who is responsible if dad dies with no will?”

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