If There Is No Will, Who Assigns an Executor?

By Phil M. Fowler

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.

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.

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.

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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.

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Probate Laws for Dying Without a Will in Minnesota

References

Related articles

Massachusetts Laws Regarding the Administrator of an Estate

Probate is the court-supervised process whereby the assets of a deceased person are collected and distributed according to the terms of a will, or by state law if no valid will exists. If named in the will, the person charged with handling the probate process and reporting to the court is usually known as an executor. If not named in the will, or if there is no will, the court appoints an administrator to oversee the distribution of assets.

Administrator vs. Executor in a Probate

Executors and administrators have much of the same job. Each must guide a decedent's estate through the probate process, making sure his creditors receive notification of his death and payment of his debts, and ensure the estate's remaining assets pass to the decedent’s heirs or beneficiaries.The major difference between the two positions is in the way each receives appointment. Both are representatives of the estate and of the court. They’re duty-bound to act in the best interests of the decedent and to follow the letter of the law.

The Hierarchy of Heirs

The hierarchy of heirs is determined by laws that govern inheritance in each state. Some states have adopted the Uniform Probate Code and have based their inheritance laws on its recommendations. The Uniform Probate Code provides rules concerning who is entitled to inherit a deceased relative's property/estate if no last will and testament was executed. Although laws may vary somewhat by state, typically the hierarchy of heirs is intended to divide the estate fairly among surviving family members.

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