If There Is No Will, Who Assigns an Executor?

by Phil M. Fowler
Judges appoint executors in the absence of a will.

Judges appoint executors in the absence of a will.

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The term "intestacy" refers to a probate situation in which a person dies without a valid will. When this is the case, state law determines how the estate is handled with the probate judge applying state law in his appointment of an executor. Many states refer to executors in intestacy as administrators instead of executors, but the job functions are similar despite the differing terminology.

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State Probate Laws

Every state has enacted some form of a probate code that governs intestacy in that particular state. While many state laws are similar, being based at least partially on a standard set of laws called the Uniform Probate Code, each state has its own specialized provisions. Under the laws of every state, the probate judge appoints an executor, when necessary. Some states, however, require no executor or administrator under certain circumstances, such as if the decedent did not owe any debts at the time of death.

Uniform Probate Code

The Uniform Probate Code is a model statutory code; at least 18 states have wholly or partially adopted this code. Further, several other states have borrowed portions or principals from the Uniform Probate Code. Accordingly, the Uniform Probate Code is a good place to gain a general perspective for probate questions, including the procedure for appointment of executors or administrators in intestate probate proceedings.

Standard Guidelines

Under the Uniform Probate Code, the appointment of an administrator follows a standard chain of progression. The first choice is the spouse of the deceased, but only if the spouse has a right to receive property out of the intestacy estate. In most states, and under the Uniform Probate Code, a surviving spouse is almost always entitled to a minimum distribution. Same-sex spouses who move to a state that does not recognize same sex marriage, for example, may forfeit their rights as a surviving spouse in that state. If the surviving spouse for some reason is not entitled to a distribution, or does not want to act as administrator, the next in line to serve is any adult child entitled to a distribution. If that doesn't work, the next in line is the surviving spouse, regardless of whether the spouse receives a distribution. If the appointment of a spouse or adult child isn't feasible, the judge will open the appointment to anybody interested and qualified to serve.

Always an Option

Probate judges are not irreversibly bound to the standard guidelines for appointments. In most states, probate judges can refuse to appoint the next person in line if the judge determines, for some reason, that person is incapable or unqualified. The final decision to serve as an estate administrator or executor always rests, ultimately, with the person appointed by that judge. Nobody ever has a legal obligation to serve the estate, which means individuals can deny judicial appointments.