When you draft your last will and testament, a common practice is to appoint an executor—someone who will be responsible for fulfilling all the legal, financial, and personal duties left regarding your estate.
Even if you do name an executor in your will, depending on when you drafted your will and appointed your executor, you could live a long time before you die and the court probates your will. There is always a chance that your executor could die before you. Likewise, your executor could die after you but before your estate is properly probated and administered.
Jump ahead to these sections:
- What Happens If They Die Before the Testator Dies?
- What Happens If The Executor Dies Before or During Probate?
- What Happens If The Court Has to Appoint a Personal Representative?
- How Can You Avoid The Court Having to Appoint a Personal Representative?
If you do not plan ahead for these possibilities, it could delay the probate of your will or cause someone to serve as your executor whom you would not otherwise want to handle your estate.
What Happens If The Executor Dies Before the Testator Dies?
It is almost always better to name an executor in your will than to have the court appoint a personal representative because you, rather than the court, will be able to choose who you want your executor to be.
Also, if you name an executor in your will, the executor can file for probate of your estate and the court can quickly administer “letters testamentary,” which will authorize your appointed executor to carry out the administration of your estate.
If you do not have a will, or if you have a will but do not name an executor, the court will appoint an executor, also called a “personal representative” or “administrator” to take charge of your estate. This person will be responsible for all the duties shared by an executor, but the appointment of said personal representative can delay the probate process. It will also ultimately extend the time it takes to administer your estate.
The duties of an executor include the following:
- Filing your will in probate court when you die
- Securing all your property and keeping it safe
- Notifying your heirs and those named in your will of your death
- Settling all your debts
- Paying taxes
- Administering your estate according to the terms of your will
If your executor dies before you, they will not be able to fulfill any responsibilities under your will because their duties do not begin until you die. If you die before you take any corrective measures to appoint another executor before you die, the court will have to appoint a personal representative to administer your estate in probate after you die.
This can take time and delay the entire process. However, there is an option to respond to the death of an executor who dies before you die:
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Amend your will and appoint a new executor
If your executor dies before you die, you are still alive and have the ability to amend your will to appoint a new executor. The problem is that you cannot know whether you will outlive your executor, or if you do, by how long.
So you run the risk that you will die before you are able to appoint a new executor after your executor dies. In that case, when you die, you will have no executor and the court will have to appoint a personal representative to administer your estate.
What Happens If The Executor Dies Before or During Probate?
If you name an executor in your will and you die first, your executor is able to file your will for probate and carry out their responsibilities to administer your estate according to the terms of your will.
However, even if you die first, there is still a chance that your executor could die before the probate process begins or during the probate process but before your estate is fully administered.
Under these circumstances, the court is confronted with the same problem—a lack of an executor capable of carrying out the administration of the estate. Therefore, the court will have to appoint a personal representative to finish the administration that the former executor could not finish.
You can read our guide on how long the probate process takes if you're interested in reading more about the process.
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What Happens If The Court Has to Appoint a Personal Representative?
There are several occasions on which the court will have to appoint a personal representative to administer your estate:
- You die without a will
- You die with a will but do not appoint an executor
- You appoint an executor in your will but the executor dies before you do
- You appoint an executor in your will who survives you but dies before or during probate
In appointing a personal representative, the court will look to its state’s law to determine who it may appoint. Some states provide a list of prioritized categories of persons from which the court will consider appointing a personal representative. They usually include a spouse and other categories of relatives. For example, the categories may include:
- A surviving spouse (or a person selected by a spouse who is unwilling to serve)
- Next of kin or heirs
- Creditors of the estate
- Any other person who is competent to serve
Notwithstanding the state’s list of categories, the court ultimately has the authority to appoint any person it sees fit to serve. In making this determination, the court may consider factors such as the following:
The person’s age. In every state, you are disqualified from serving as a personal representative if you are under 18 years of age. Some states set the minimum age at 21 years.
Whether the person has a criminal record. In some states, you may be prohibited from serving as a personal representative if you have been convicted of a serious crime. Other states may allow you to serve, but you must inform the court if you have been convicted of any felony.
Whether the person has a special interest in a business of the estate. The court may prohibit any person who has a business partnership interest with the decedent from serving as the personal representative.
Whether the person is suitable to serve. If a court determines that a person is not suitable to serve as a personal representative because they are dishonest, suffer from an addiction or substance abuse problem, or are mentally disabled, the court may forego this person as a candidate to be a personal representative.
How Can You Avoid The Court Having to Appoint a Personal Representative?
There are several ways to avoid the circumstances that would cause a court to have to appoint a personal representative. These preventive steps may be taken while you are alive and when you draft your original will. They include:
Appointing a successor executor in your will. A successor executor is someone you name in your will to take over the responsibilities of the executor if the executor dies or becomes incapacitated. Until the original executor is unable to fulfill their duties, the successor executor has no responsibilities or obligations under the will.
Appoint co-executors in your will. Appointing co-executors means that you appoint one or more executors to serve as executor at the same time. If one of the executors dies or becomes incapacitated, the other executors are already authorized to complete the administration of your estate.
When appointing co-executors, you can direct all of the executors to be responsible for all of their fiduciary duties under the will or you may designate certain powers to certain beneficiaries as you see fit.
By appointing a successor executor or co-executors, you can avoid the delay and difficulty of the court having to appoint a personal representative to administer your estate.
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Every Will Must Have an Executor—Make Your Executor Your Own
When you have a will, you should appoint an executor to administer your estate when you die. If you have a will without appointing an executor, or if you appoint an executor in your will but your executor dies before you, you should take the opportunity while you are still alive to amend your will and appoint a new executor.
If your executor dies after you die but before or during probate, the court will have to appoint a personal representative to handle your estate. The only way to avoid this is to take steps in your original will to appoint either a successor executor or co-executors, who are already authorized to serve as executor if your original executor dies or becomes incapacitated.