The death of a loved one is a difficult experience no matter the circumstances. It can be especially difficult when a person dies without a will. If a person dies without a will and there are assets that need to be distributed, the estate will be subject to the process of administration instead of probate proceedings.
In this case, the decedent’s heirs can select someone to manage the estate, called an administrator instead of executor. State law will provide who has priority to be appointed as the administrator. Louisiana Civil Code provides that a spouse will have priority and in the event that there is no spouse, the adult children are next in line to serve. However, those that have priority can decline to serve, and the heirs can sign appropriate affidavits or other pleadings to be filed with the court that nominate someone else as the administrator. Also, in Louisiana, anyone can petition the Court to become an Administrator of an estate, even a creditor. Of course, the Court will usually defer to the line of priority, but not always. Once the judge appoints the nominated person they will then have the authority to act and begin estate administration.
In Louisiana, we also now have the concept of Independent Administration which has greatly reduced the costs of handling successions, as it allows the Independent Administrator to act without Court authority. In an administration of the estate, all of the general or universal heirs have to agree to have an independent administration and appoint a person to act as such.
That is why writing a will is so important. You can name your Executor of the estate and also state that they can act as a Independent Executor and to do so without the necessity of posting bond. That way there is no need to g to other heirs seeking authority, the will establishes that right. You can also name a substitute executor, should the person initially appointed be unable to perform or continue to perform their duties.
In certain circumstances, it may be necessary to change the initially appointed administrator during the administration process. Whether this is advisable depends on many factors. First, the initial administrator will have started the process and will be familiar with what remains to be done. The new administrator will likely be behind in many aspects of the case and may have to review what the prior administrator did. This can cause expenses and delays. Also, it is possible that the attorney representing the initial administrator may not be able to ethically represent the new one, again causing increased expenses and delays. However, if the first administrator is not doing his/her job, the heirs can petition to remove the individual and appoint a new one.
If you are currently involved in a situation where an estate needs to be administered, it is recommended that you speak with an estate planning attorney in your state.
Vincent B. LoCoco
Many & LoCoco