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Persons To Be Appointed Personal Representatives of An Estate for Probate

  1. Types of Personal Representatives.

A personal representative(s), who takes charge of and “administers” the estate, is appointed to fill one of the following positions (Smith v. Cimmet (2011) 199 CA4th 1381, 1390-1391, 132 CR3d 276, 282, fn. 3 (citing text); Estate of Casserley (2018) 22 CA5th 824, 828, 232 CR3d 129, 131, fn. 1):

  1. [3:327] Executor: An “executor” is a person named by decedent to carry out the terms of the will. [Prob.C. § 8420 et seq.; Estate of Wardani (2022) 82 CA5th 870, 880, 298 CR3d 828, 836; Estate of Hilton (1996) 44 CA4th 890, 894, 52 CR2d 491, 495, fn. 1];
  • Administrator with will annexed: An “administrator with will annexed” is appointed if no executor is named in the will being probated or no named executor is willing or able to act. [Prob.C. § 8440; Estate of Wardani (2022) 82 CA5th 870, 880, 298 CR3d 828, 836; Estate of Hilton (1996) 44 CA4th 890, 894, 52 CR2d 491, 495, fn. 1];
  • Administrator: An “administrator” is appointed as personal representative of an intestate estate. [Prob.C. § 8460(a); Estate of Wardani (2022) 82 CA5th 870, 880, 298 CR3d 828, 836; Estate of Heath (2008) 166 CA4th 396, 400, 82 CR3d 436, 438];
  • Special administrator: The court may appoint a “special administrator” when immediate action must be taken prior to granting of the probate petition and issuance of permanent letters. [Prob.C. § 8540(a); Estate of Hilton (1996) 44 CA4th 890, 894, 52 CR2d 491, 495, fn. 1].
  • Right to Appointment

Executor(s).  A person named as executor in decedent’s will has the right to appointment as personal representative (or co-representative) unless they are statutorily disqualified or chooses to decline the appointment. [Prob.C. § 8420; Estate of Backer (1985) 164 CA3d 1159, 1164-1165, 211 CR 163, 166]

(1)  Persons ineligible for appointment: A person is disqualified from                            acting as executor in any of the following circumstances (Prob.C. § 8402):

  1. Underage of majority: A minor (under age 18; see Fam.C. § 6500) may not serve as executor. [Prob.C. § 8402(a)(1)]
  • Incapacity: Persons subject to a conservatorship or otherwise incapable or unfit are not eligible to be appointed executor. [Prob.C. § 8402(a)(2); see Estate of Manischewitz (1952) 113 CA2d 5, 6, 247 P2d 572, 573; Estate of Johnson (1920) 182 C 642, 643-645, 189 P 280, 281]
  • Subject to removal: Nor may a person be appointed executor if they would be subject to removal from office under Prob.C. § 8502 (e.g., because of a conflict of interest). [Prob.C. § 8402(a)(3) (superseding prior case law holding cause for removal did not itself render named executor ineligible for appointment in first instance); Baker Manock & Jensen v. Sup.Ct. (Salwasser) (2009) 175 CA4th 1414, 1423, 96 CR3d 785, 791; see Estate of Hammer (1993) 19 CA4th 1621, 1642, 24 CR2d 190, 202—executor engaged in unrelated litigation against estate beneficiary was subject to removal for conflict of interest]
  • Reasons for Removal, Upon Further Findings: Unless they would adversely affect the estate or its beneficiaries such that the executor’s removal would be warranted, the following circumstances are not per se disqualifying grounds:

                                                Ill will: Evidence that named executor harbored ill feelings toward                                                 decedent and surviving spouse. [Estate of Shimun (1977) 67 CA3d                                                 436, 441-442, 136 CR 668, 671-672];

                                                Illiteracy or lack of business experience: [Estate of Olcese (1930)                                                   210 C 262, 269, 291 P 193, 196; Estate of Nicoll (1947) 79 CA2d                                                   48, 52, 179 P2d 95, 97-98]

                                                Out-of-state residence: A nonresident may serve as personal                                                            representative; however, personal representatives domiciled                                                            outside California must sign and file a statement of their permanent                                                address, thereby appointing the Secretary of State as agent for                                                         service of notices in the proceedings. [Prob.C. §§ 8572-8577]

Person Named in Decedent’s Will.  The right of appointment as an “executer” carries with it the condition that the person being appointed is “named in the decedent’s will.” What about when the language of the will is not clear?

A decedent’s failure to expressly state that a named person is nominated to serve as executor does not necessarily require appointment of an administrator with will annexed. “The testator has a right to nominate his executor, and his intention will normally be carried out even though he does not specifically name the person or use the most direct or appropriate language.” [Estate of Baird (1987) 196 CA3d 957, 964, 242 CR 246, 250]

If the will’s terms reflect that the testator intended to commit the estate administration to a particular person, that person (unless otherwise disqualified) is entitled to the appointment. Express testamentary language, such as “I appoint … as executor of my will,” is not required. [Prob.C. § 8421; see Estate of Henderson (1925) 196 C 623, 638-639, 238 P 938, 943-944—executor appointed pursuant to testamentary provision stating that named person shall “have charge of my affairs”].

A decedent’s will may also confer on someone else the power to designate an executor or coexecutor, or successor executor or coexecutor. [Prob.C. § 8422(a)]. A designation pursuant to such provision must be in writing and filed with the court.

If the power to designate is delegated to more than one person, the designation must be unanimous … unless the will otherwise provides, or one of the designators is “unable or unwilling to act.” [Prob.C. § 8422(b)]. Notwithstanding the preceding paragraphs, nothing in the Code requires named executors to accept the appointment. [See Prob.C. § 8420] They may decline … in which case, the remaining nominees, if any, may serve (Prob.C. § 8425); or, if no alternates or successors were named, the court will appoint an administrator with will annexed. When a person wishes to decline appointment, the declination must be so stated on the petition for probate and be set forth in writing.

  • Challenging Appointment.

Any “interested person” may challenge appointment of a particular executor and, if appropriate, at the same time file a petition for letters of administration with will annexed. The objections will be heard, and a determination made, at the hearing for probate of the will. [Prob.C. § 8004]

  • Appointing an Administrator When Decedent Died Intestate (without a will).

In intestate cases, the court appoints an “administrator” subject to the following rules:

            (1) Eligibility for appointment:  any competent adult is eligible to be appointed as administrator (Prob.C. § 8402(a)(1) & (2)), subject to disqualification on any of the         following grounds:

                        (a) Grounds for removal: A proposed administrator may be denied the                                            appointment if there are grounds that would warrant their removal from office                               under Prob.C. § 8502 (see ¶ 3:335). [Prob.C. § 8402(a)(3)];

                        (b) Foreign resident: An administrator must be a resident of the United States.                               [Prob.C. § 8402(a)(4); Estate of Heath (2008) 166 CA4th 396, 400, 82 CR3d 436,                         438] “Resident” for this purpose means a person who actually lives in the U.S.and                     is not merely present temporarily. [Estate of Wardani (2022) 82 CA5th 870, 879,                                     885, 298 CR3d 828, 836, 840];

                        (c) Surviving business partner: Decedent’s surviving business partner is                                          disqualified if any “interested person” objects to the appointment. [Prob.C.                                    §8402(a)(5)];

                        (d) Minors, wards and conservatees: A minor, ward or conservatee is                                              personally disqualified; but the court in its discretion may appoint their guardian                           or conservator “or another person entitled to appointment.” [Prob.C. § 8464;                          Estate of Lewis (2010) 184 CA4th 507, 511, 108 CR3d 800, 802].  That said, the                             guardian or conservator steps into the disqualified minor’s, ward’s or conservatee’s               shoes and is entitled to the appointment unless the court exercises its discretion to                              appoint someone else in the same priority class as the minor, ward or conservatee.                      [Estate of Lewis, supra, 184 CA4th at 512, 108 CR3d at 803].

            (2) Priority of right to appointment: The priority of those persons entitled to           administer an estate is wholly statutory, as established by Prob.C. § 8461. The statutory             priority rankings are absolute; so long as a person in a higher priority class is otherwise          eligible and has not waived the right to priority of appointment, the court has no             discretion to appoint someone in a lower class. [Estate of Garrett (2008) 159 CA4th 831,          836, 71 CR3d 864, 867 (discussing priority right of surviving spouse); Estate of Lewis             (2010) 184 CA4th 507, 513, 108 CR3d 800, 804—no discretion to appoint person in        inferior class (here, the public administrator) in preference to disqualified minor’s           guardian or any other person in same priority class as disqualified minor]. The persons         are entitled to appointment as administrator in the following order of priority (Prob.C. §            8461):

            • Surviving spouse or domestic partner (as defined in Prob.C. § 37) (Prob.C. § 8461(a));

            • Children (Prob.C. § 8461(b));

            • Grandchildren (Prob.C. § 8461(c));

            • Other issue (Prob.C. § 8461(d));

            • Parents (Prob.C. § 8461(e));

            • Brothers and sisters (Prob.C. § 8461(f));

            • Brothers’ and sisters’ issue (Prob.C. § 8461(g));

            • Grandparents (Prob.C. § 8461(h));

            • Grandparents’ issue (Prob.C. § 8461(i));

            • Predeceased spouse’s or domestic partner’s children (Prob.C. § 8461(j));

            • Predeceased spouse’s or domestic partner’s other issue (Prob.C. § 8461(k));

            • Other “next of kin” (Prob.C. § 8461(l));

            • Predeceased spouse’s or domestic partner’s parents (Prob.C. § 8461(m));

            • Predeceased spouse’s or domestic partner’s parents’ issue (Prob.C. § 8461(n));

            • Decedent’s conservator or guardian of the estate acting in that capacity at time of death                provided they have filed a first account and is not acting in the same capacity for any        other person (Prob.C. § 8461(o));

            • Public administrator (i.e., a county officer, see Prob.C. § 7600 et seq.) (Prob.C. §            8461(p));

            • Creditors (Prob.C. § 8461(q));

            • “Any other person” (Prob.C. § 8461(r)).

The priority rights under Prob.C. § 8461 are determined by the circumstances existing at the time of decedent’s death. [Estate of Garrett (2008) 159 CA4th 831, 839, 71 CR3d 864, 869 (priority right as surviving spouse)].


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