A person named as executor in a decedent’s will in California has the right to appointment as personal representative, unless otherwise disqualified. California Probate Code §8420. If it appears by the terms of the decedent’s will that the decedent intended to have a person administer the estate, but did not name the person executor, that person is entitled to appointment as the representative just as if they were named in the will. California Probate Code §8421.
What Happens If the Nominated Personal Representative Does Not Want To Serve?
If the person named in the will does not want to serve as personal representative, or is unable to, then an administrator with the will annexed is appointed pursuant to California Probate Code §8440.
The order of priority for appointment as administrator with the will annexed is the same order of priority as for appointment of an administrator in California, with the following exceptions pursuant to California Probate Code §8441(b).
First, a person who takes under the will has priority over a person who does not, but the court in its discretion may give priority to a person who does not take under the will if the person is entitled to a statutory interest that is a substantially greater portion of the estate than the devise to the person who takes under the will and the priority appears appropriate under the circumstances.
Second, a person who takes more than 50 percent of the value of the estate under the will or the person’s nominee, or the nominee of several persons who together take more than 50 percent of the value of the estate under the will, has priority over other persons who take under the will.
Who Serves As Personal Representative in California If There Is No Will?
If a California decedent dies intestate, then an administrator is appointed. The priority for the appointment of an administrator is set forth in §§8461-8469 of the California Probate Code. The following order of priority for entitlement to appointment as administrator applies:
(a) Surviving spouse or domestic partner as defined in Section 37.
(d) Other issue.
(f) Brothers and sisters.
(g) Issue of brothers and sisters.
(i) Issue of grandparents.
(j) Children of a predeceased spouse or domestic partner.
(k) Other issue of a predeceased spouse or domestic partner.
(l) Other next of kin.
(m) Parents of a predeceased spouse or domestic partner.
(n) Issue of parents of a predeceased spouse or domestic partner.
(o) Conservator or guardian of the estate acting in that capacity at the time of death who has filed a first account and is not acting as conservator or guardian for any other person.
(p) Public administrator.
(r) Any other person.
There are some exceptions to the order of priority set forth in section §8461, primarily with regard to the surviving spouse or domestic partner’s priority to serve.
If the surviving spouse or domestic partner is entitled to succeed to all or part of the estate, or takes under the will of, or is entitled to succeed to all or part of the estate of, another decedent who is entitled to succeed to all or part of the decedent’s estate, then the surviving spouse or domestic partner maintains priority to serve as administrator. However, if the surviving spouse is a party to an action for separate maintenance, annulment, or dissolution of marriage, and was living apart from the decedent when decedent died, then the surviving spouse has priority after the brothers and sisters and not the priority set forth in §8461.
Who Is Prohibited From Being A Personal Representative In California?
Sometimes a person is not competent to serve as a personal representative in California because they are disqualified by statute. Under §8402 of the California Probate Code, a person is not competent to serve as personal representative under California law if:
- The person is under the age of majority
- The person is subject to a conservatorship of the estate or is otherwise incapable of executing, or is otherwise unfit to execute, the duties of the office.
- If grounds for removal of the person from office under California Probate Code §8502 exist.
- The person is not a resident of the United States.
- The person is a surviving partner of the decedent, and an interested person objects to the appointment.
The provisions for a non-resident and surviving partner prohibitions do not apply if the person is named as executor in the decedent’s will.
Does A Personal Representative Named In A Will Have Power Before Appointment?
No. The person must be appointed by the probate court as the personal representative and letters issued for the appointment as personal representative to be effective. California Probate Code §8400(a).
The person named in the will to serve as personal representative can pay funeral expenses and take necessary steps to maintain and preserve the estate prior to appointment is made or becomes effective. To learn about the duties of a personal representative in California probate, click here.