If There’s No Will, Who’s the Executor?

Judges turn to state law when they must choose someone to wrap up an estate.

By , J.D.

An important part of making a will is naming someone to serve as your executor, also called a personal representative in some states. What is an executor? The executor is the person who will be in charge of your estate 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 of an estate without a will?

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.

State Law on Who Becomes Executor If There's No Will

It's up to the probate court to appoint an administrator of an estate with no will. 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:

  1. Surviving spouse, or a person the surviving spouse nominates
  2. Children
  3. Mother or father
  4. Brothers or sisters
  5. Grandchildren
  6. Next of kin entitled to inherit under state law
  7. Creditors
  8. 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, the spouse can nominate someone—in essence, the surviving spouse stands in the place of the deceased person. (58 Okla. Stat. Ann. § 122.)

If the surviving spouse doesn't name someone, or if there is no living spouse, 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:

  1. Spouse or domestic partner
  2. Other heir (person entitled to inherit under state law)
  3. 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 executor, administrator, or 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 are disqualified under state law. Here are some factors that might 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 these grounds for disqualification, probate court judges commonly have a lot of discretion when appointing an executor or administrator. 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.

How to File to Be Executor of an Estate Without a Will

If your loved one died without a will, you can begin the probate process by going to the probate court in the county where your loved one died, and filing the death certificate and an application (or "petition") to begin probate. The application will typically allow you to nominate someone (often yourself) to act as the administrator. If someone has higher priority than you to serve as administrator under state laws (see above), you may need them to decline to serve, usually by signing a simple form available from the court.

Each state's probate process varies, so you'll want to look into the specifics in your state or work with a local probate attorney.

Some estates don't need a formal probate process. Perhaps all of the property can be transferred in ways that avoid probate (such as a living trust or beneficiary designations on bank accounts and retirement accounts), or perhaps the estate is small or simple enough to qualify for a probate shortcut. In these cases, you might not need to be formally appointed as an administrator (though it may still be helpful for you to take charge), or the exact procedures might vary.

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