When you create your Last Will and Testament, one of the most important decisions you will need to make is the appointment of an Executor. Your Executor oversees the probate of your estate after your death, meaning he/she will be responsible for securing, managing, and eventually transferring your estate assets as well as paying creditors of your estate. Your Executor is also responsible for defending your estate if the estate becomes involved in probate litigation. What happens though, if your Executor can’t, or won’t serve? To answer that question, an Estate Planning Attorney at The Collins Law Group explains what happens in the event the person you appointed as your Executor cannot serve in that capacity.
The Role of Executor
One advantage to executing a valid Will is that the individual named as the Executor of the Will is the person who will oversee the probate of your estate after you are gone, usually with the assistance of an experienced estate planning attorney. Just because you appoint someone to be your Executor, however, doesn’t mean that he/she will end up serving in that capacity. Your appointed Executor is not obligated to accept the appointed. It may also be the case that the person you appointed is unable to serve because he/she predeceases you or is incapacitated when the time comes to probate your estate. If your named Executor cannot/will not serve, and you included a secondary choice, that person can act as your Executor. If neither your primary or secondary Executor is able or willing to serve, the court will appoint an Administrator to oversee the probate of your estate. For the most part, an Administrator performs the same duties and has the same responsibilities as an Executor during the probate process.
Who Will the Court Appoint as Your Administrator?
If the probate court must appoint someone to serve as the Administrator of your estate, the California Probate Code, Article 4, Section 8461 lists the order of priority as follows:
- Surviving spouse or domestic partner as defined in Section 37.
- Other issue.
- Brothers and sisters.
- Issue of brothers and sisters.
- Issue of grandparents.
- Children of a predeceased spouse or domestic partner.
- Other issue of a predeceased spouse or domestic partner.
- Other next of kin.
- Parents of a predeceased spouse or domestic partner.
- Issue of parents of a predeceased spouse or domestic partner.
- 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.
- Public administrator.
- Any other person.
The court must also determine that the prospective Administrator is competent to serve in that capacity. Under §8402 of the California Probate Code, a person is not competent to serve as Administrator 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.
Contact The Collins Law Group
For more information, please download our FREE estate planning worksheet. If you have additional questions about creating your Will or acting as Executor during the probate of an estate, consult with one of our Estate Planning Attorneys. Contact the Collins Law Firm by calling (310) 677-9787 or online at collinslawgroup.com to register for one of our FREE estate planning workshops.
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