Even the most careful estate planner cannot predict the future. Beneficiaries may die or disappear, children may be born after a will is made or a named executor may be unable or unwilling to serve. Unintended consequences may be avoided by anticipating as many of these scenarios as possible when preparing a last will and testament, and updating it as needed. When the unexpected does occur and a will doesn’t provide for it, state law typically determines how probate proceeds.
An executor, also referred to as a personal representative, is the person named in a will to manage the estate and carry out the wishes of the deceased. Duties typically include dealing with creditors and paying all debts, taxes or claims against the estate. He may also be responsible for preparing estate tax returns and providing an inventory and accounting to the court, if required. He also notifies beneficiaries of any inheritances and disburses those assets in accordance with the last wishes of the deceased.
If the person named to serve as executor of the estate dies first, a well-written will generally designates a successor to act in his stead. That successor may be another family member, an attorney, bank or financial institution. The successor executor is generally given all the same powers as the first-named executor and is charged with the same duties. The successor may also be asked to serve when the primary executor is still alive but refuses or is unable to fulfill his duties due to mental or physical incapacity.
In the unlikely event that the testator, or will maker, did not designate a successor in the will or both the primary and successor executors have predeceased her or refused to serve, the provisions of the will cannot be probated exactly as written. State laws generally provide for administration of the estate with the will annexed in this situation. This procedure allows the will to direct the distribution of assets as stated by its terms but under the management of a court-appointed administrator. An executor may have been exempt from posting bond with the court under the terms of the will, but most states require administrators to provide a bond in an amount established by the court. Payment of a bond to the court helps protect the beneficiaries in the case of mismanagement by the administrator, sometimes also referred to as "personal representative."
Who May Serve
Generally, the person who is entitled to inherit the majority of estate assets, often a surviving spouse, will be given first priority to act as administrator. Qualified petitioners are typically chosen in order of priority under intestate succession laws. In other words, if two heirs petition a probate court to administer the estate and one is an adult child of the deceased and the other a brother, the court will generally allow the appointment of the child who would stand to inherit first. Those often appointed to serve include a surviving spouse, child, parent or sibling of the deceased. In order to qualify as an administrator in most states, the petitioner must be a resident of the state where the will is being probated, over the age of majority and not a convicted felon.