An essential part of estate planning is selecting someone to represent you after your death in the management of your estate. This personal representative is also known as an executor, or executrix, if you choose a woman as your personal representative.
An executor is an individual who will manage your estate by protecting your assets while paying outstanding debts/taxes until the remaining assets can be distributed according to the terms in the will.
But what would happen if someone dies without a will and, therefore, without appointing a personal representative? In the law, this is known as dying intestate. When this occurs, the relevant state court must decide who will act as the estate’s administrator or personal representative.
Guidance From State Law
A probate court judge will appoint an estate administrator if someone dies intestate. The court’s decision will be based upon state law, which will include legal guidance delineating how a judge prioritizes potential fiduciaries with regard to an administrator’s appointment.
Each state sets forth a prioritized list of preferred executors. Some states offer detailed guidance, like Oklahoma, which provides this prioritized list –
• The surviving spouse or someone the spouse nominates.
• Children of the decedent; all children are deemed equal under the law, independent of their birth order.
• Mother or father of the decedent.
• Brothers or sisters of the decedent.
• Grandchildren of the decedent.
• Any next of kin entitled to inherit under state law.
• Any legally competent person.
It is noted that if more than one person is equally entitled to be appointed, a court has the option to appoint one or more of them. However, Oklahoma law prescribes explicitly that if the decedent was a partner in any business, at no time can the surviving partner be appointed the administrator of the estate.
Conversely, some other states and jurisdictions do not offer the same detailed guidance as Oklahoma. For instance, the Garden State, New Jersey provides this guidance to probate judges with regard to administrator selection –
• The surviving spouse or surviving domestic partner.
• Any other heir or individual with legal standing to inherit property under state law.
• Any other person deemed appropriate and competent.
Other Factors That Courts May Consider When Determining the Administrator
The reality is that even if an individual has been duly named as executor in a will, or entitled to be chosen as a valid executor, the probate court always has the final decision as to who will serve as the estate’s administrator or personal representative. The court, when awarding authority to an administrator, will issue letters of administration or letters of testamentary – the legal documentation required that authorizes one as an estate’s personal representative.
Certain people who might otherwise be entitled to serve as an executor may become disqualified based on relevant state law. The following list details a variety of factors that may or may not be valid reasons to disqualify a potential executor –
• Age – All states require that a personal representative be at least 18 years old, with many setting the bar even higher at a minimum age of 21.
• Criminal History – Certain jurisdictions forbid those individuals who have been convicted of serious crimes from serving as the fiduciary representative of a decedent’s estate. Still, other jurisdictions only require a potential executor to notify the court of the felony conviction.
• Residence – Residency may influence one’s ability to serve as a personal representative. Some states allow nonresidents to serve under specific circumstances. Other jurisdictions allow nonresidents if the individual is a close relative. Still, other states require a nonresident executor to post a bond or use an agent within the state’s jurisdiction to process services and the court’s communication.
• Business Relationship – Certain states, like Oklahoma, have certain laws regarding who may or may not be an executor if the decedent was an active member of a partnership.
• Citizenship – The law is generally silent, but it is noted that courts that been asked to consider citizenship and have made rulings that permitted noncitizens to serve as an estate’s personal representative. The reality is that courts are typically more concerned about state residency as that is the court’s realm of jurisdiction; the court wants to be sure it has jurisdiction over the personal representative. (See In re Estate of Fernandez, 335. So. 2d 829 (Fla. 1976).)
Independent of the disqualification issues noted above, probate judges have much latitude and discretion regarding the provision of the letters of administration or letters of testamentary. Certain states have joined together to adopt a relevant set of laws known as the Uniform Probate Code, which permits a probate judge the ability to disqualify any individual deemed unsuitable as the result of a formal proceeding.
Note, though; probate court judges deem an individual as unsuitable if there is credible proof speaking to the individual’s substance abuse, mental disability, or a history of serious dishonesty.