WHO WILL BE APPOINTED EXECUTOR OR ADMINISTRATOR FOR PROBATE?

What happens if more than one person is petitioning the probate court to become the personal representative of the decedent’s probate estate?  Who does the judge pick?

If there is a will, and the will designates an executor (or executrix – the antiquated name for a female executor), then the named executor will likely be appointed, subject to the caveats below.  Otherwise, per Probate Code section 8461, the Probate Court gives the following persons (in relation to the Decedent) priority when deciding appointment:

  • Surviving spouse or domestic partner – if the spouse was engaged in dissolution proceedings at the time of death, s/he is not entitled to priority.  “Putative spouses,” which are defined by having engaged in a union “solemnized in due form and celebrated in good faith” by both parties but which union, by reason of some legal infirmity, is either void or voidable” are also given priority;
  • Children – including pretermitted (unintentionally left out of the will – see our blog, here, for a more detailed explanation) are still given priority;
  • Grandchildren;
  • Other issue;
  • Parents;
  • Siblings;
  • Children of Siblings;
  • Grandparents;
  • Grandparent’s descendants;
  • Children of spouse or partner;
  • Other kin: resident relatives may be given priority of kin of a closer degree;
  • Relatives of Spouse or Partner;
  • Conservator or guardian;
  • Public administrator;
  • Creditors: if a petitioner’s priority is only that of a creditor, the court can deny the appointment and appoint another person;
  • Any other person.

Absent a will, however, the personal representative must be a resident of the United States. Additionally, surviving business partners of the decedents may not serve as probate representative if any interested party objects.

Moreover, the Probate Court, pursuant to Probate Code sections 8402 and 8502, may deny appointment if the Petitioner acted wrongfully or fraudulently.  Specifically (but not exclusively), the following are grounds for refusing appointment as administrator: wasted, embezzled, mismanaged, or committed a fraud on the estate, or is about to do so; is incapable of properly executing the duties of the office or is otherwise not qualified for appointment as personal representative; wrongfully neglected the estate; or denying appointment is otherwise necessary for protection of the estate or interested persons.