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

If you're wrapping up an estate and can't find a will—or the will you've got isn't valid—state law steps in.

By , J.D.
Nolo

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 will inherit the property? When there's no will, state law provides the answers. Each state has laws setting out who will:

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

Who's the Executor If There's No Will?

Without a will, there's no way to know who the deceased person would have chosen as the 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, and wrap up the estate.

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 as the executor.

State law provides a priority list for the court to use when selecting a personal representative or administrator. In most states, the surviving spouse or registered domestic partner, if there is one, 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.

Restrictions on Who Can Serve as Executor or Personal Representative

Most states have laws that either prevent certain people from serving as an executor, administrator, or personal representative of an estate, or place additional restrictions on them. Factors considered might include:

  • age
  • residence (whether the person lives in the same state where the probate proceeding will happen)
  • citizenship
  • criminal background.

Look up whether your state has restrictions on who can serve as an executor.

Who Inherits When There's No Will

Assets That Don't Pass by Will

Some types of property don't pass by will anyway. Even if there's no will, these common assets typically have a named beneficiary who will inherit. In other words, the person or people who will inherit are usually pretty clear. Just locate the documents in which the co-ownership or beneficiary designation was established. These types of property include:

Property That Passes According to State Law

For other types of property, if there's no will stating who should inherit the property, each state's laws will set out who will inherit the deceased person's property. (Look up your state's intestate succession laws.)

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. Each state has a set of laws that sets out the priority that various relatives have when they inherit. Unmarried partners, friends, and charities get nothing. (This is why it's important to have a will. Most people don't want laws to dictate who receives their property.)

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.

If There Are Disputes About Who Inherits

Sometimes, despite the deceased person's beneficiary designations or state intestate succession laws, family conflict will happen anyway. If it still isn't clear who should inherit property, if someone challenges another person's right to inherit, or if the family is embroiled in arguments, you'll probably want to get a probate lawyer involved.

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. (You can make a simple will yourself.)

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.