Each state has slightly different requirements for who can and can’t serve as the executor, personal representative, administrator, or other similar equivalent of a will.
But regardless of the specific requirements, probate courts and probate judges have the final say, and here’s what they typically look for.
Who Can Be the Executor of a Will
Executors are most often the surviving spouse, an immediate family member of the deceased, or a family lawyer, but generally speaking most adults who are U.S. residents and do not have any felonies qualify to serve as the executor of an estate.
Broadly speaking, executors:
- Must be a legal adult, so either 18 or 21, depending on the state*
- Can’t have any felonies (excluding New Jersey* and Oregon)
- Must be a U.S. resident
- Must be deemed “of sound mind” by the probate court
There are also a myriad of other state rules that may affect eligibility. Many states follow the Uniform Probate Code in whole or in part, but it’s best to check in with a probate lawyer and/or look up the specific county and state the deceased lived in and see what their requirements are.
Out-of-State Executors Have Extra Requirements
If you are attempting to serve as an executor for an estate in another state, it is common for jurisdictions to impose additional requirements on those executors. These most often include:
- Hiring a resident process agent. A resident process agent is someone who can expedite communications between the probate court and the executor. Some states allow hiring a probate attorney to fulfill a similar role.
- Purchasing a probate bond. Even if a will waives the probate bond requirement, a probate court may enforce it because you are out of state. Probate bonds are a form of insurance that protects creditors and beneficiaries from executor negligence or foul play.
- Appointing a co-executor. While executors often work alone, it is possible to have multiple executors settle an estate. A probate court may require you to do this.
Who Gets Asked to Be Executor First?
Again, this changes by state, but generally speaking this is who will be asked and given the right to serve first:
- The executor named in the will (if it exists)
- The backup executor named in the will
- The spouse
- Any beneficiary
- Children of deceased
- Other next of kin
- Creditors who are owed money by the estate
- Any competent county resident who wishes to serve on behalf of the decedent
What Makes a Good Executor?
Even if someone has the right to be the executor, that doesn’t mean they are right for the job. Considering the number of responsibilities executors have, people who do best are:
- In a stable living and financial environment
- Good at juggling deadlines
- Good communicators
- Comfortable with hiring people
- Good at resolving conflict
- Ideally in the same state (not required)
Obviously these are ideal and not required traits, but if your family is debating who makes the most sense, see if anyone is generally organized and good with numbers.
Can an Executor Refuse to Serve?
Yes. Executors named in a will or through other means always have a right to decline serving as the executor. This refusal is completed via a form submitted to the probate court. In this case, if a will had a backup executor, then that person would be tapped to serve.
If there are no backup executors, the backup executor can’t serve, or if there is no will and there is a dispute about who has the right to be the executor, probate courts will refer to the order listed above to tap executors.
Can Families Hire Someone to Be Their Executor?
While it is not something we recommend due to the much higher costs, it is possible to hire a probate attorney, accountant, bank, or other professional to serve as the executor for an estate. Keep in mind, these professionals usually only work with estates that have enough assets to justify their costs. So if you are dealing with a smaller estate (<$500k in probate assets), some of these options won’t be available.
What Are Executors Required to Do?
Serving as an executor or personal representative is a demanding but inspiring role. Executor duties and responsibilities include:
- Filing the will (if it exists)
- Initiating probate. This is when you petition the probate court via a series of forms to receive your letters testamentary or letters of administration
- Hiring a probate lawyer and other professionals if necessary. Not all states require a probate lawyer, but they can be a huge help
- Creating an inventory of assets. This is a summary of everything that is considered a probate asset*
- Filing notice to creditors. This is the act of notifying anyone who is owed money by the estate that the decedent has passed. More on that here: How to File Notice to Creditors in 6 Simple Steps
- Create an estate account. This is a temporary account you open to manage the estate’s finances with
- Pay all debts, taxes, and other expenses. This happens before any distributions occur
- Split what is left over between beneficiaries. Take the net value of everything left and split it according to the will or intestacy laws
- Do final accounting & forms. Dissolve any existing accounts & check that the probate court has everything they need. This usually includes proof of taxes paid, claims paid, and a detailed estate accounting report
For a complete breakdown of executor responsibilities and a bunch of super useful advice, read: How Executors Succeed
How to Become an Executor When There is a Will
If a will exists, an executor is almost always named in the will. You should also see a backup executor or two if the main executor cannot serve.
After you find the will, you just need to:
- File the will with the relevant probate court (where the deceased permanently resided)
- Pick up or download the petition for probate forms
- Fill out the petition for probate form(s). This is your formal request to the court to approve you as executor, and make sure you are applying for the appropriate level of probate
- Receive your letters testamentary. The probate court will A/B what you applied for versus the will and approve you if everything checks out. Assuming you do, they will give your letters testamentary, which give you the legal right to manage the deceased’s assets
You will need some basic information to petition for probate, including date of birth, name, their death certificate, who the beneficiaries are, how many executors there are, and so on.
How to Become an Executor When There is No Will
Passing without a will is known as dying intestate, and this means there is no executor named in advance. This is common, so don’t worry if that’s the position you’re in.
The process if similar to having a will, albeit a bit shorter:
- Look thoroughly for a will. Don’t assume they don’t have one.
- Consult with all relevant beneficiaries and family members and decide who should be the executor.
- Pick up or download the appropriate petition for probate forms from the relevant probate court.
- Fill out all necessary paperwork to initiate probate.
- Get appointed by the probate judge and receive your letters of administration, which are similar to letters testamentary except that they are given when the deceased passed intestate.
If there are disagreements about who should be the executor, remember that it is possible to appoint multiple executors, although that may slow down the process if disputes often arise. Beneficiaries can also contest an executor appointment, but they must have clear evidence of ineligibility, negligence, or abuse of power. Most families are able to identify a good candidate to serve as executor, but if you run into these situations it’s likely time to probate lawyer up.
The Bottom Line on Who Can Be an Executor
Most adults without a criminal record in the U.S. can serve as the executor, although there are individual state requirements that vary / out-of-state executors will be subject to more restrictions. Serving as an executor is a significant and important responsibility, however, so we recommend choosing someone who is organized, good with deadlines, and doesn’t mind solving problems.