If a person dies leaving a will the court will generally appoint the person named in the will to be the executor of the estate during probate. An exception to this would be if the person named refused to be executor, or was unable to do so.
Probate with a will
If there is a will but it does not name an executor the person given the first right is the person entitled to the greatest share of the estate. However, the will does not always determine who gets the greatest share. Even if the will gives everything to one person there may be someone else who has a higher entitlement to the estate. For example, a surviving spouse may have survivor’s rights to the entire estate, or a creditor may be entitled to the biggest portion.
Probate without a will
If there is no will or the will does not name an executor the court will accept petitions from persons interested in the estate who want to be appointed as administrator. The petition must be supported by good reasons why that person should be appointed instead of another. The reasons need only be good enough to win against the competition. If there is no competition or objections the court will generally grant the petition
If there is no will an administrator will be chosen from a list of priorities set out in the Probate Code. The list reflects an order of typical “closeness” of family relations. The order on the list will apply even if in real life the deceased was not at all close to the person with the highest priority.
Priority of Administrator
The list gives first priority to the spouse or registered domestic partner. If there is no spouse or partner next in line are children. If no children then grandchildren, then “other issue,” parents, siblings, nieces and nephews, grandparents, and so on. After relatives comes public administrators and creditors.
Within the priority schedule any person who is under 18, not a US resident, or incapable of executing the administrator’s duties is ineligible to be an administrator. There are also certain objections that may be raised to a particular administrator that will prevent him or her from being appointed, such as a conflict of interest, or a history of fraud, or embezzlement.
Choosing an administrator
It is important that a responsible and trustworthy person be appointed administrator. The administrator is in charge of gathering together all of the assets of the estate and making an accounting. You do not want someone who might leave certain valuable assets unreported and keep them for herself/himself. A security bond can be required of an administrator but if an asset disappears and is never reported then the bond is no help. Sometimes the bond requirement is waived because beneficiaries trust the administrator will do the right thing. If they find out later that the administrator was dishonest it may be too late to recover money already spent.
Removing a probate administrator
It is possible to remove an administrator after he or she is appointed. The court will require a petition showing good reasons. Good reasons include neglect, fraud, mismanagement, or protection of the estate. The administrator may also be removed on the grounds that there is someone else having a higher priority in the list mentioned above. But, the court may refuse to remove an administrator if the petitioner had an opportunity to contest the appointment in the first place and made no objection.
From Sebastopol, the Law Offices of Graden Tapley represents clients throughout Sonoma County, including Santa Rosa, Cotati, Healdsburg, Petaluma, Rohnert Park, Santa Rosa, and Windsor.