Independent Administration without a Will
Independent Intestate Administration
Independent administration of an estate can occur in one of two ways. The first occurs when a decedent specifies in his or her Will that the estate should be administered independent of the court’s oversight. The second occurs when a decedent dies without a Will and all of the beneficiaries of the estate agree on the appointment of an Independent Administrator. The process of administering an estate moves more quickly and is more cost effective in an independent administration because the Independent Administrator can perform his duties without having to spend time and money obtaining the court’s approval for each step of the process.
Consent of All Heirs
All heirs of a decedent’s estate must agree that the estate will proceed as an independent administration, otherwise, the court will permit only a dependent administration. The heirs must also agree on the nomination of an Independent Administrator. So long as the heirs of an estate agree and consent, an estate may proceed as an independent administration with an Administrator of the heirs’ collective choosing. If an heir is a minor child or an incapacitated person, such consent may only be obtained from the Guardian of the Estate of such person.
Application for Independent Administration
After all heirs have consented to an independent administration, an interested person will file an Application for the Appointment of an Independent Administrator. The Application will include, among other things, the decedent’s identity, domicile, and date of death, along with a list of all known heirs and the relationship of each heir to the decedent.
In the absence of a Will, the court will not grant the independent administration until it enters a Judgment Declaring Heirship. A person interested in the estate may file an Application for Determination of Heirship and a Motion to Appoint an Attorney Ad Litem to represent unknown heirs. The applicant must also include a verification form, signed in the presence of a notary, which states that all facts within the Application are true and correct. All heirs must be served with citation and notice of the Application unless they submit a waiver of such service to the court. The hearing on the Application for Determination of Heirship usually takes place immediately before the appointment of an Independent Administrator.
Hearing and Judgment
Once the Application for the Appointment of an Independent Administrator and the Application for a Determination of Heirship have been filed with the clerk and the Attorney Ad Litem has been appointed and is ready to proceed, the court will allow a hearing to be set. The court hears the testimony of at least two disinterested witnesses before it enters the Judgment Declaring Heirship. In addition, if the court determines that administration of the estate is necessary and all heirs have agreed on the appointment of a qualified person to serve independently, it will enter the Order appointing such qualified person as Independent Administrator and typically waive the requirement of bond, provided the heirs collectively request such bond be waived.
Oath and Bond
Once the Order Appointing Independent Administrator has been signed, the named Independent Administrator must sign and file an Oath in order to qualify. In the unusual circumstance that a bond is required by the court, the Independent Administrator will obtain such bond, and upon court approval of such bond, qualify as Independent Administrator. The Indent Administrator may then order from the clerk Letters of Independent Administration.
Letters of Independent Administration
Letters of Independent Administration are letters that authorize the Independent Administrator to act and manage affairs on behalf of the estate. The Independent Administrator will take these Letters to financial institutions, title companies, insurance companies, and others to demonstrate that they are the person authorized by the court to handle estate accounts. Cash and investments will be transferred into an account styled in the name of the estate and the Independent Administrator will have access to invest and distribute these assets as necessary.