What Does The Executor Do When There's No Will?

If you're the executor and can't find a will--or the will you've got isn't valid--state law steps in.

Lots of people don’t write wills—so when it’s time to settle their estates, who should step in to manage things, and who inherits the property? State law provides the answers. It sets out who will:

  • administer the estate
  • inherit the property, and
  • take care of minor children, if any.

Who’s in Charge?

Without a will, there’s no way to know who the deceased person would have chosen as executor, the person in charge of carrying out the terms of the will. But someone must have authority to take charge of the deceased person’s property and debts.

If a probate court proceeding is necessary, the court will choose someone to fill this role. Some states call this person the administrator of the estate; in others, the term personal representative is used. Either way, it’s the same job. State law provides a priority list for the court to use. In most states, the surviving spouse or registered domestic partner, if any, is the first choice. Adult children are usually next in line, followed by other family members.

If no probate proceeding is necessary, there won’t be an official personal representative for the estate. Instead, someone close to the deceased person—usually the surviving spouse or an adult child—steps in to wrap things up, using informal procedures to transfer property to the new owners.

Either way, the personal representative will be in charge of collecting the deceased person’s property, paying debts and taxes, and distributing what’s left to the people who inherit it under state law.

Who Inherits: Intestate Succession Laws

Every state has "intestate succession" laws, which parcel out property to the deceased person's closest relatives. These laws apply to property that doesn’t pass through a will, living trust, or some other mechanism.

Generally, only spouses (or civil union partners or registered domestic partners, in states that offer these options) and blood relatives inherit under intestate succession laws.

Unmarried partners, friends, and charities get nothing. If the deceased person was married, commonly the surviving spouse gets the largest share. If there are no children, the surviving spouse often receives all the property. More distant relatives inherit only if there is no surviving spouse or children. In the rare event that no relatives at all can be found, the state takes the assets.

All states bar people from inheriting if they criminally caused the death of the deceased person. (These laws are commonly called “slayer statutes.”) And in many states, a parent who abandoned or refused to support a child, or committed certain crimes against a child, cannot inherit from that child.

Keep in mind that many kinds of assets don’t pass by will anyway.  Common assets that aren’t affected by the terms of a will, or state intestate succession law, include:

  • life insurance proceeds
  • real estate, bank accounts, and other assets held in joint tenancy, tenancy by the entirety, or community property with right of survivorship
  • property held in a living trust
  • funds in an IRA, 401(k), or retirement plan for which a beneficiary was named
  • funds in a payable-on-death (POD) bank account, and
  • stocks or other securities held in a transfer-on-death (TOD) account.

To find out who inherits these types of property, you'll need to locate the documents in which the co-ownership or beneficiary designation was established.

Who Takes Care of Young Children?

Parents who have young children typically name someone to serve as the personal guardian of their children when they make a will. This person would raise the children if neither parent were available to do it.

But if a guardian is needed and there's no will, the judge must appoint one, without knowledge of the deceased parent’s wishes. Before deciding whom to appoint, the judge will gather as much information as possible about the children, their family circumstances, and the deceased parents’ wishes and try to make a good decision. The primary rule is that the judge must always act in the best interests of the children.

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