What If There Is No Named Executor in a Will?

By A.L. Kennedy

The executor, or personal representative, is the person responsible for carrying out the instructions in a will once the person who wrote the will, or the testator, has passed. The testator is allowed to choose any competent adult to serve as executor, and most wills appoint an executor of the estate. However, if the will does not mention an executor, the probate court will appoint someone to be the executor.

No Named Executor

There are a number of situations in which an individual might not have named an executor for an estate. According to FindLaw, the most common situation is one in which the testator neglects to appoint someone in a written will. In the few states that recognize nuncupative, or oral wills, the testator may have failed to name an executor. Finally, persons who die without a will do not have a named executor. A will does not have to appoint an executor by name as long as the will provides a reasonably certain way to figure out who is meant to be the executor, according to the American Bar Association. For instance, if you have only one child, your will may say "I appoint my child as my executor," without mentioning the child by name. Most courts will consider this valid, because it is easy to determine who the executor is.

Court Appointment

When no executor is named, the executor cannot be determined or the executor is unable or unwilling to serve, the probate court will appoint someone to be the executor. Usually, the court will allow any interested person to offer to serve as executor and will choose from those who volunteer. An interested person is someone who has something to lose or gain if the will is probated. Usually, a family member or beneficiary will be chosen to serve as executor, but a creditor may also be chosen, according to the Hampshire County, Massachusetts Probate Court.

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Appointed Executor Duties

An executor who is appointed by the court has the same duties as one who is named in a will, according to the Hampshire County, Massachusetts Probate Court. The appointed executor must contact the beneficiaries and creditors, make an inventory of the estate's assets, pay any bills that are due and distribute the remaining assets to the beneficiaries as ordered in the will. If there is no will, the appointed executor distributes the assets according to the state's law for intestate persons (persons who died without a will).

Independent Executor

As of 2010, only twelve U.S. states allow a testator to appoint an "independent executor." An independent executor has the power to distribute an estate's assets without supervision by the probate court, according to the American Bar Association. However, if an independent executor is not named in the will, the probate court will not appoint an independent executor in most cases, but will expect the appointed executor to report to the probate court.

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Can One of the Heirs Be a Probate Executor?
 

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