7th Feb 2013
When a person dies, legal mechanisms are set in motion to initiate the distribution of the estate. One such mechanism is probate where the court oversees the distribution of the estate. During probate, a “personal representative” is appointed by the court to administer the distribution. If you are preparing your Will, you may want to seek the advice of a California probate attorney so you can be advised as to who can best qualify to be your personal representative.
The personal representative is the individual the decedent designates in his will to oversee the distribution of the estate when he dies. In some cases, he may be called the executor or administrator. It may be possible though that the person the estate owner named in his will cannot serve as personal representative. In such a case, the court then appoints someone to be the personal representative. In such a case, the question arises: Who then is qualified to be a personal representative?
First, to be able to serve as a personal representative, you must be at least 18 years old and you are not subject to a conservatorship or other legal impediments that may hinder your performance as a personal representative. Hence, even if you are the one named in the Will as the Executor, if you do not meet these basic requirements, then you cannot serve as the personal representative. It is always important to consult a probate lawyer in California when you are preparing your will in this state to ensure that your designated personal representative is qualified for the job at hand.
Another requirement is that you must currently be a resident of the U.S. and are in the order of priority for appointment. The priority order follows a pattern similar to the distribution of the estate under intestacy.
The order goes as follows: surviving spouse (assuming there is no divorce action filed against the spouse and the spouse is not living separately from the decedent at the time of death), children, grandchildren, other issues of the children or grandchildren, surviving parents, siblings (including half-brothers and sisters but not stepbrothers and stepsisters.) , nephews and nieces, grandparents, issues of grandparents, children of predeceased spouse, other children of predeceased spouse , other next of kin, parents of predeceased spouse, issues of the predeceased spouse, guardian or conservator of the estate, public administrator, creditors, and any other person not related to the decedent but who personally knows the decedent.
Even if there is a priority order serving as a personal representative is not mandatory. A person who is appointed to be a personal representative may decline the appointment, but he has to express this in writing.
Should you be the one appointed, you are advised to consult a California probate lawyer to apprise you of your duties and obligations as a personal representative as well as your compensation. (Yes! Your job is not done gratis et amore.)
If you found this post helpful, please comment below. To contact Dwight Tompkins please go to www.tompkins-law.com.