If you don’t have a Will, you don’t have an Executor. Your Executor is the person you name to carry out the terms of your Will, meet your post-mortem legal obligations, and distribute your estate to your heirs.
So what happens if you don’t have a Will? Or you do have a Will but the Executor is unable to serve for some reason?
Well, someone still needs to be in charge or winding up your affairs, collecting your property, paying your bills and taxes, and distributing what is left to your heirs. If you don’t have an Executor to be in charge, the government is going to have to name someone. This person is typically referred to as the Administrator of your estate.
In naming an Administrator, your local court (usually acting through an Orphans or Probate division) will be guided by state law. Each state has laws which set out a hierarchy of who is authorized to administer your estate if you don’t have an Executor. Pennsylvania law is fairly typical. The Pennsylvania hierarchy is set out in Subchapter D of Chapter 31 of the "Probate, Estates and Fiduciaries Code."
If there is no Executor, Pennsylvania law gives top priority to (1) those persons who are entitled to your residuary estate under your will (if you have a will). Next in priority is (2) the surviving spouse, if any. Then things get a little murkier and discretion is given to the Register of Wills.
The Register of Wills is the county officer who processes the estate paperwork when someone dies. The Register of Wills issues documents (“Letters”) that authorize the executor or administrator to act on behalf of the estate. The Register is the office that accepts the filing of documents needed to complete the estate administration and serves many additional functions including collecting inheritance tax due to the Commonwealth of Pennsylvania.
In some cases, the law gives the Register of Wills discretion in determining who will be appointed as administrator of estate. The Register has quasi-judicial authority and can, if necessary, conduct hearings to determine who should be appointed. If no one is entitled to appointment under the (1) residuary estate or (2) surviving spouse provisions, Section 3155(b) of the Pennsylvania law directs the Register to issue Letters to:
(3) Those entitled under the intestate law as the register, in his discretion, shall judge will best administer the estate, giving preference, however, according to the sizes of the shares of those in this class.
(4) The principal creditors of the decedent at the time of his death.
(5) Other fit persons.
(6) If anyone of the foregoing shall renounce his right to letters of administration, the register, in his discretion, may appoint a nominee of the person so renouncing in preference to the persons set forth in any succeeding paragraph.
(7) A guardianship support agency serving as guardian of an incapacitated person who dies during the guardianship administered pursuant to Subchapter F of Chapter 55 (relating to guardianship support).
(8) A redevelopment authority formed pursuant to the act of May 24, 1945 (P.L.991, No.385), known as the Urban Redevelopment Law.
Section 6 above is used frequently. It allows someone with priority (.e.g. a surviving spouse) who doesn’t want to take on the responsibilities of being the Executor to nominate someone else to serve. The law also sets out categories of persons who are not entitled to serve as the administrator of an estate:
Persons not qualified.
No person shall be qualified to serve as a personal representative who is:
(1) Under 18 years of age.
(2) A corporation not authorized to act as fiduciary in the Commonwealth.
(3) A person, other than an executor designated by name or description in the will, found by the register to be unfit to be entrusted with the administration of the estate.
(4) The nominee of any beneficiary, legatee or person having any interest whatsoever, when such beneficiary, legatee or person is a citizen or resident of any country outside the territorial limits or possessions of the United States, when it shall appear doubtful to the register that in the distribution of the estate any such person will have the actual benefit, use, enjoyment or control of the money or other property representing his share or interest therein.
(5) Charged, whether by indictment, information or otherwise, by the United States, the Commonwealth or any of the several states, with voluntary manslaughter or homicide, except homicide by vehicle, in connection with a decedent's death unless and until the charge is withdrawn, dismissed or a verdict of not guilty is returned.
In most cases it is going to be much easier and better for your survivors if you have a Will that names an Executor who is able and willing to serve. So make a Will and update it every five years or so, or sooner if circumstances change. Here are a couple of additional tips for you to consider when you do create or update your Will:
- If you have a Will, consider whether the person you named as Executor is still the best choice. Are they able and willing to serve?
- In your Will be sure to name a backup for your primary choice as Executor. Don’t force the Register of Wills to name an administrator for your estate.
- Recognize that you probably also own assets that will pass automatically to a beneficiary without the involvement of an executor or administrator. Examples include (A) assets owned jointly with right of survivorship, (B) Retirement accounts, life insurance policies and annuities; (C) Investments held in transfer on death (“TOD”) accounts; (D) Assets held by a trustee. Talk with your lawyer to make sure that the disposition of these beneficiary designated assets are properly coordinated with the dispositions created under your Will.