What If There Is No Named Executor in a Will?

By Stephanie Kurose, J.D.

What If There Is No Named Executor in a Will?

By Stephanie Kurose, J.D.

When a person dies, the executor—sometimes referred to as a personal representative—is the individual responsible for administering and distributing that person's estate according to the terms of their will. Typically, the person writing the will—called the testator—names or appoints the person they want to serve as executor in their will. However, if the decedent, or the person who passed, dies intestate (without a will) or if their will does not contain any reference to an executor, a probate court is responsible for appointing one.

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No Named Executor in a Will

Most of the time, when a person drafts a will they include the name of a trusted individual they want to serve as executor. Oftentimes, they may even name a second executor in the event that the first choice does not accept the responsibility. However, a will does not have to appoint an executor by name so long as it provides a reasonable description of who should be the executor. For example, if the testator has two children, the will could say "I appoint my oldest child as my executor." Even without providing a name, the court can reasonably ascertain whom the testator intended to designate and will consider this valid.

Court Appointed Executor

There are a few circumstances where a court is responsible for appointing an executor to administer and distribute a decedent's estate. First, if the named executor in a person's will rejects the role of executor and there is no backup executor named, a probate court appoints someone else to serve as the executor. Second, if the testator simply neglected to appoint an executor in their will, a probate court designates someone on their behalf. Lastly, if the decedent dies intestate, there is no named executor, and thus, a probate court appoints someone to serve that role.

When a court appoints someone to serve as the estate's executor, it is typically a close family member. Any person asked to serve as an executor must formally accept the job; they always retain the option of rejecting the offer.

The Duties of an Executor

One of the reasons a possible executor has the option of refusing the job is that enormous responsibilities accompany it. Regardless of whether the will named the executor or the court appointed them, the job duties are the same. The executor is responsible for contacting all of the beneficiaries or heirs as well as any creditors to whom the decedent owed money. The executor must collect and inventory all of the estate's assets and use them to pay off any outstanding debt. After that, the executor distributes the remaining assets to the beneficiaries according to the terms of the will or, if there is no will, to the decedent's heirs according to the state's default laws of intestate succession. The probate court with jurisdiction oversees this process.

Independent Executors

Some states allow a testator to name an "independent executor" in their will. An independent executor has the power to administer and distribute the decedent's estate without a probate court overseeing the process.

Regardless of whether a person fails to name an executor in their will or dies without a will, a probate court appoints an executor to administer their estate. If you are interested in writing a will, consider using an online service provider who can help you get started.

This portion of the site is for informational purposes only. The content is not legal advice. The statements and opinions are the expression of author, not LegalZoom, and have not been evaluated by LegalZoom for accuracy, completeness, or changes in the law.