When parents die without either having executed a Will, the law of intestate succession hold that the estate will pass to their children equally. In the event one child has predeceased the parents, his or her share will pass to his or her children if there are any. In order to administer the estate, any potential heir may apply to be administrator. He or she will have to post a surety bond in order to do so. To be appointed, all other heirs must sign a renunciation. If they do not, the only way an administrator may be appointed is for the filing of a Verified Complaint and Order To Set a Hearing Date with the County Surrogate. The matter will be scheduled before the probate judge who will appoint an administrator. If the applicant is deemed ready, willing and able by the court to act, he or she will likely be appointed. However, if a contest to the application is filed by another family member, the court may appoint a member of the probate bar to serve as administrator. Since it appears the matter is contentious, hiring competent counsel is highly recommended.
This response does not constitute the establishment of an attorney-client relationship. It is also not to be taken as firm legal advice as such would be contingent on a full inquiry by the attorney into the complete background of the facts and circumstances surrounding this matter. The response is meant to be a helpful guide to a question in a manner which reflects the limited information provided by the inquirer.
The child willing to be the administrator can petition the Court for appointment. Notice of the petition should be given to the other child so they may appear and object to the appointment. Since this may be adversarial, it may be a good idea to get the assistance of legal counsel.
This answer does not constitute legal advice. This advice is based on general principles of law that may or may not relate to your specific situation. Facts and laws change and these possible changes will affect the advice provided here. Consult an attorney in your locale before you act on any of this advice. You should not rely on this advice alone and nothing in these communications creates an attorney client relationship.
Since Tom and Peter gave dead on advice to yur main question, I won't repeat their points. However, regarding your what now and who is responsible questions.... If the other child wants to be co-administrator, it may make sense for the two children to serve together rather than waste money on a court proceeding. If the other child is just refusing to do anything, the first child probably can get appointed through a simple court application as Tom describes. Regardless of whether there is an administrator, the estate is liable for all of decedent's expenses and administration costs so if, for instance, RE taxes aren't being paid, they will build up with interest. Similarly, the utility can shut off service and sue if not paid. You need to resolve this ASAP and should retain an estate lawyer to file the required court papers.
Lawrence Friedman, Bridgewater, NJ. Certified as an Elder Law Attorney by the ABA approved National Elder Law Foundation, former Chair NJ State Bar Association Elder and Disabilities Law Section, Member Board of Consultors of NJSBA Real Property, Trusts & Estates Law Section, Vice Chair Special Needs Law Section of National Academy of Elder Law Attorneys, and Master of Laws (L.L.M.) in Taxation from N.Y.U. School of Law. Visit SpecialNeedsNJ.com for articles and Q&A on elder law, special needs, wills, trusts, estates, and tax and SpecialNeedsNJ.com/blog for timely updates. Information on both Avvo and SpecialNeedsNJ.com does not constitute legal advice, as it is general in nature and may not apply to your situation or be subject to important changes. No attorney client relationship exists unless set forth in written engagement terms.