An important part of making a will is naming someone to serve as your executor, also called a personal representative in some states. The executor is the person who will be in charge of your property after your death. The executor will gather your assets and keep them safe, pay debts and taxes, and distribute your assets following the terms of your will.
But if you don’t leave a will, you can’t name someone to be your executor. So in that case, who’s the executor?
It’s a trick question—if there isn’t a will, technically there can’t be an executor. But there will be someone who takes on all the responsibilities of an executor. That person will be called the administrator or the personal representative, depending on the custom in your state.
Guidance From State Law
It’s up to the probate court to appoint an administrator if one is needed. But how does the court, without guidance from a will, choose someone? The answer is found in state law. Every state sets out an order of priority for judges to follow when appointing an administrator. For example, here is the priority list for serving as an administrator in Oklahoma:
- Surviving spouse or a person the spouse nominates
- Mother or father
- Brothers or sisters
- Next of kin entitled to inherit under state law
- Any legally competent person
So when an Oklahoma resident dies without naming an executor, the surviving spouse is first in line to be appointed as administrator. If the spouse doesn’t want the job or isn’t able to do it, he or she can nominate someone—in essence, the surviving spouse stands in the place of the deceased person. (58 Okla. Stat. Ann. § 122.)
If the survivor doesn’t name someone, then the court moves on to the children, then the parents, and on down the list. Courts do not, by the way, automatically appoint the oldest sibling as administrator. All children of a deceased person on are an equal footing.
Some states don’t go into nearly so much detail. New Jersey, for example, provides this short list:
- Spouse or domestic partner
- Other heir (person entitled to inherit under state law)
- Any other person
(N.J. .Stat. Ann. § 3B:10-2.)
Factors Courts May Consider
Even if someone is nominated in a will to serve as executor, or is entitled to priority for appointment in a state statute, the court has the final say over who actually serves as the personal representative. Only the court can issue the document (commonly called “letters of administration” or just “letters”) that gives someone authority over the assets in a deceased person’s estate.
Certain people who would otherwise be entitled to serve as personal representative are disqualified under state law. (The same factors apply to persons nominated in a will.) Here are some factors that may or may not serve as reasons for disqualification:
- Age. No state allows persons under 18 to serve as a personal representative; many set the minimum age at 21.
- Criminal history. Some states forbid persons convicted of serious crimes from serving. (See, for example, Washington Rev. Stat. § 11.36.010.) Others require only that anyone who has been convicted of a felony inform the probate court. (For example, Oregon follows that rule. Or. Rev. Stat. § 113.092.)
- Business relationship. In Oklahoma, if the deceased person was a member of a partnership at the time of death, the surviving partner must “in no case” be appointed as administrator.
- Residence. All states allow persons who don’t live in the state, under certain circumstances, to serve as personal representatives. A few states allow this only if the person is a close relative. Many others require a non-resident to post a bond or appoint an in-state agent for service of process (that is, to receive communications from the court).
- Citizenship. There isn't much law on this, but the courts that have considered the question have ruled that noncitizens may serve as executors. Courts are usually more concerned about who's actually a resident of the state; the court wants to be sure is has jurisdiction over the personal representative. (See, for example, the Florida Supreme Court's decision in In re Estate of Fernandez, 335. So. 2d 829 (Fla. 1976).)
Apart from such detailed grounds for disqualification, probate court judges commonly have a lot of discretion about whom they issue letters to. In the states that have adopted a set of laws called the Uniform Probate Code, judges can disqualify anyone they find “unsuitable” in a formal proceeding. Usually, a court finds someone unsuitable if there is credible evidence of serious dishonesty, substance abuse, or mental disability.