When a person dies, property passes according to her will or, in the absence of a valid will, under state intestacy statutes. But most property does not pass automatically upon death. Rather, most estates must pass through a court-supervised probate process, where estate debts are paid, assets inventoried and objections resolved. The person appointed to administer the estate through probate is termed the executor or the personal representative.
Often, a person making a will identifies the person she wants to serve as the executor of her estate. While some testators choose a professional fiduciary, far more name a spouse or principal beneficiary. Even if other beneficiaries petition to be executor, most states give priority to the person named in the will. Any interested party may file written objections to the testator's choice of executor, but barring evidence that the named executor is not fit to serve, probate courts usually honor the testator's wishes.
Appointment of Executor
If the will does not name an executor, or the executor is not able to serve, the court appoints one. Anyone inheriting under the will may apply for the position. While some states give absolute priority to a surviving spouse, some -- such as Alaska and Michigan -- give a surviving spouse priority only if the spouse receives property under the will; if not, priority passes to those who do.
Read More: Suing the Executor of a Will
Personal Representative in Intestate Estates
When a person dies without a valid will, the court appoints a personal representative to administer the estate through probate. Any heir may petition to be appointed. Most states give appointment priority to a surviving spouse, if any, followed by adult children, adult grandchildren, parents, siblings, followed by other heirs. In some jurisdictions, such as California, a surviving domestic partner receives the same priority as a surviving spouse.
Most state statutes disqualify certain persons from serving as an executor or a personal representative. Generally, minors -- persons who have not attained the age of legal competence under the laws of the state -- cannot serve as executor or personal representative. Most states set the age of legal competence at 18 years old. Some states disqualify convicted felons or those serving prison time. In all cases, a court has discretion to require the executor to post a bond to protect the estate assets for the heirs and beneficiaries.
- Arizona State Legislature: Title 14-3203, Priority Among Persons Seeking Appointment as Personal Representative
- Bernalillo County, New Mexico: Who Are the Heirs?
- Probatealaska.com: Selecting the Personal Representative
- Onecle: Priority Among Persons Seeking Appointment as Personal Representative - Mich. Comp. Laws Section 700.3203
- Justia.com: 2006 New York Code - Order Of Priority For Granting Letters Of Administration
- The Grossman Law Firm: If There Is No Will, How Is the Estate Representative Chosen?
- California Courts: Wills, Estates and Probate
- Legal Dictionary: Minor
Teo Spengler earned a J.D. from U.C. Berkeley's Boalt Hall. As an Assistant Attorney General in Juneau, she practiced before the Alaska Supreme Court and the U.S. Supreme Court before opening a plaintiff's personal injury practice in San Francisco. She holds both an M.A. and an M.F.A in creative writing and enjoys writing legal blogs and articles. Her work has appeared in numerous online publications including USA Today, Legal Zoom, eHow Business, Livestrong, SF Gate, Go Banking Rates, Arizona Central, Houston Chronicle, Navy Federal Credit Union, Pearson, Quicken.com, TurboTax.com, and numerous attorney websites. Spengler splits her time between the French Basque Country and Northern California.