Who Can Serve as Executor? Legal Restrictions

Ultimately, state courts are in charge of who they allow to serve as executor of a will - at least in their probate courts.

Every state imposes its own rules about who may serve as an executor (personal representative) of an estate that’s probated in the state’s courts. So even someone who is willing to take on the job of wrapping up an estate might not qualify under state law.

The Basic Rules

Generally, you can serve as an executor unless you:

  • are not yet at least 18 years old (21 in some states)
  • have been convicted of a felony
  • are not a U.S. resident, or
  • have been judged incapacitated (unable to handle your own affairs) by a court.

Some states don’t have hard and fast rules against people who have a felony conviction in their past. For example, Oregon requires a potential personal representatives to disclose any felony convictions to the probate court, but doesn’t automatically disqualify them unless the facts underlying the conviction, or other evidence, indicates that the person would be untrustworthy when put in charge of other people’s money. (Or. Rev. Stat. § 113.092)

In addition, some states reject potential executors who are:

  • illiterate (North Carolina)
  • "unsuitable"  in the eyes of the court (Arkansas, Indiana, Texas), or
  • habitual drunkards (Nevada).

Special Rules for Out-of-State Executors

Florida is the only state that requires a personal representative to be a relative or spouse of the deceased person, or the spouse of a person who is qualified to be the personal representative. (Fla. Stat. Ann. s 733.304)

In other states, you don’t have to be a relative or a resident of the state where the probate court proceeding takes place. But if you do live out of state, you may have to jump through some hoops that state residents can ignore. A fair number of states impose special requirements on out-of-state executors. They will apply to you even if you start out as a state resident but move away before the probate case is finished.

Posting a bond.

Even if the will says it’s not required, you may have to post a bond—a kind of insurance policy that’s intended to protect beneficiaries in case you mishandle estate assets.

Appointing an in-state agent.

Some states insist that you appoint a state resident to be your in-state "agent," who is authorized to accept legal papers on your behalf. This way, there is always someone around who is subject to the jurisdiction of the local court.

Appointing a coexecutor or administrator.

You may need to appoint a state resident to serve as joint personal representative with you.

To show that you’ve met these requirements, you’ll probably have to file documents with the probate court, in which you accept the job as personal representative, agree to submit to the court’s jurisdiction, and show that you’ve met any other requirements.

What Happens If the Person Named in the Will Can’t Serve?

If the person named in a will to serve as executor is found ineligible under state law (or simply declines to serve), the alternate named in the will is next in line. If the will doesn’t name an alternate executor, or that person also can’t serve, state law determines what happens next. Every state sets out a priority list for the court to consider in this situation.

There’s considerable variation among state laws, but many states direct judges to appoint people in roughly this order:

  • surviving spouse (or partner in a registered domestic partnership or civil union)
  • children
  • grandchildren
  • parents
  • siblings
  • another beneficiary of the will
  • a creditor (one who hopes to get paid from the estate may request the position).

If there are no interested heirs or creditors, the court hires someone, commonly called the "public administrator," to take over. In some states, if you are the surviving spouse or child, or the biggest inheritor, you can choose the person who will be appointed.

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