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.
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:
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:
(N.J. .Stat. Ann. § 3B:10-2.)
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:
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.