Who Will Act as the Executor in California Probate?

When a person has died and has left an estate to be taken care of and distributed, someone must step forward to do the job. If the deceased person has left a will, and the will named someone to take up this charge, this person is first in line to act as the executor. Sometimes, the will also names an alternate executor who will then be next in line should the first chosen person decline or be unable to serve.

Is the executor's appointment not made by the Probate Court?

If a formal California probate court process is necessary, the executor named in the will is appointed by the court and issued Letters Testamentary, which is a formal badge of office.

If the estate is exempted from probate, the executor named in the will usually serves as the informal estate representative. In the subsequent part of this article, it is assumed that a probate proceeding is required.

What happens if the will appoints no executor or one who won't or can't serve?

The executor named in the will may be unwilling or unable to serve. The person may have died, become impaired or estranged, or may refuse for any reason. Sometimes, the will fails to mention an executor.

In these cases, the court will appoint an administrator with Will annexed. The term "administrator" is usually used when the decedent left no will. The administrator with Will annexed is appointed in the same order of priority as a regular administrator, except that any person who inherits property under the will has priority over those who don't. Anyone who is to receive over 50 percent of the estate's value and is a US resident comes first in line to serve as an administrator or may appoint a competent person to act as such, whether or not this person is related to the decedent.

Can a former spouse, named in the will, serve as an executor?

Wills are often outdated documents. People write their will at one point in their lives and may die decades later. Updating a will is necessary, but is not always done on time.

If a former spouse is named as the executor and the marriage has since been dissolved or annulled, such an unintended situation will probably give rise to a serious conflict of interest. Under Probate Code § 6122, the former spouse will be prevented from serving as an executor, unless the will specifically provides otherwise. The same law applies to domestic partners.

Talk to San Diego probate attorney Scott Grossman about your situation and any questions you might have. Call us at (951) 683-3704 or (866) 840-0000 for your FREE 30-minute telephone consultation.

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