People create an estate plan in order to set forth instructions about their assets and how they should be distributed when they pass away. In order for those wishes to be implemented, there must be an executor or personal representative. This person, named by the deceased in their estate planning document, will be in charge of the estate and its division, as well as settling taxes and paying off the deceased’s debts.
It’s important to name an executor in a will or a revocable trust, which is something that a lot of people tend to neglect. If not the total absence of a named executor, some people don’t provide a backup in case the primary executor, for some valid reason, cannot administer the estate or did not survive the deceased.
The absence of a primary executor and a backup would mean that the will is silent as to who should take charge of it. And when a will is silent on something, the default rules in intestacy statutes apply.
The Executor in Intestacy Statutes
Without a named executor, the court will take a look at intestacy statutes to determine who should administer and execute the provisions in a will. Who will become executor depends on the family of the deceased. For married individuals, the spouse becomes the executor. If they have an adult child, the child also becomes nominated.
Whoever is next-in-line or nominated to become an executor gets messy if there are several adult children who are all eligible to become the will’s executor. In this scenario, all of them are nominated, but only one can be appointed as executor or personal representative. The other kids may be asked to resign and give up executorship to one sibling. Another issue is if the deceased has a child from a previous marriage. That child also becomes nominated to become the executor or personal representative.
For individuals who were not married and don’t have kids, their parents will be appointed as executor. If their parents did not survive them, their siblings will be nominated. If there is no one in the deceased’s family who is fit and eligible to become the executor of the estate, the court appoints one.
Why You Should List an Executor
Without a named executor, the process of finding and appointing one can get very complex. So it’s very important that one is listed in estate planning documents. Otherwise, the court will appoint someone according to intestacy statutes — and that someone may not be trusted by the deceased to manage their estate.
It’s also important to name backups in case the primary executor cannot be appointed or did not survive the deceased. As much as possible, there should be at least two backups to set forth instructions as to who should become the executor should the primary one named is unable to do so. If there are more than two backups, that’s even better.