When a Court Will Choose the Executor for You, Whether Or Not You Have a Will

What Happens when there Is No Will

After you pass away, the executor is the one who protects your assets, pays off debts, files taxes, and divides assets according to your will's instructions. There are some states where the executor is referred to as a "personal representative", but whatever the case, without a will, there is no one who has been designated as an executor. This is one of the key components of a will, after all. In fact, strictly speaking there cannot be an executor without there being a will.

What happens is that someone will be called on to perform the same tasks as an executor. This person would be known as the "administrator" or "personal representative". The terms and regulations will vary according to each state's probate courts. There will be set of guidelines about the succession of administrators that a court will choose from if no will is left behind. Some states have simple regulations. For instance, in New Jersey, this is the order of who could be appointed an administrator: the deceased's spouse or domestic partner, another heir (according to state inheritance law), or anyone else.

Then there are states like Oklahoma, where the outlines are much more specific. An administrator in that state could be chosen in the following order: the surviving spouse or someone nominated by that spouse, children, a parent, siblings, grandchildren, next of kin, creditors, or anyone who is legally competent. With such possible scenarios, it is important to note that the oldest sibling is not necessarily the first pick; any sibling has the same chance of being appointed. Also, this means that the surviving spouse is the first pick for administrator. If he or she declines the appointment, either because of inability or unwillingness, they can appoint someone to take their place. If the spouse does not nominate someone else, then the court would work down the list until someone accepts the position.

When a Court Overrides a Will

But even naming an executor in your will is no guarantee that all these steps would be bypassed. Courts are the ones who ultimately determine who will be your executor. The "letters of administration", or the document that make someone an executor, can only come from the courts. Someone on the ordered lists of potential administrators, or someone whom you name as executor, can be ineligible for any of several reasons, per state law.

For instance, no one can be an executor if they are younger than 18 years old. In some states, an executor or personal representative cannot be younger than 21. Depending on the state, there will be times when a criminal record will keep someone from serving in this capacity. The type of disqualifying crime will vary in each state. In some states, such as Oregon, people have to notify the probate court if they are a convicted felon. In Oklahoma, someone would be ineligible to be a personal representative if he or she was a business partner with the deceased when they passed away. The state where you live can also affect your eligibility; if the deceased lived in a different state, then you can only serve as a personal representative in certain circumstances. Whether or not someone is a citizen of the United States could also enter the equation; it honestly depends on the court. Usually the state where you live is more important than citizenship in this issue.

Probate judges also can bar someone from being an executor if they find the person "unsuitable". This could mean something like strong proof that someone committed fraud, has substance abuse issues, or is mentally disabled. For more information about appointing an executor or on being a personal representative, do not hesitate to contact an excellent probate attorney.