Wills, Trusts, and Estates: these are important components of a much larger, comprehensive, and complex area of the law that encompasses estate planning & administration, elder law, wealth management, Medicaid planning, estate taxes, advance healthcare directives, probate law, probate procedure, and more.
As a result, there are rarely one-size-fits-all solutions or approaches to issues that may arise out of the vastness that is estate law. That being said, there are some aspects of probate and estate law that may be addressed and/or resolved more readily than others.
In California, Who Can Serve as an Executor of a Will, And More Specifically, a Personal Representative?
Choosing an Executor of your will, who in turn, likely will serve as your Personal Representative, is a very important decision that should not be made lightly. It should involve the consideration of a number of factors, such as trustworthiness, common sense, honesty, etc.
However, once the hard (or easy) part is done and you feel you have the perfect candidate to serve as the Executor of your Will and your Personal Representative, you must determine whether he or she is eligible to serve in this capacity pursuant to the California Probate Code. If eligible, the Probate Court must appoint your chosen person as the Executor of your Estate, and thereafter, your Personal Representative.
In fact, Cal. Prob. Code § 8402 provides that, “The person named as executor in the decedent’s will has the right to appointment as personal representative.”
In the State of California, the Probate Code specifically sets forth mandates/limitations regarding the appointment of an executor, and more specifically, a personal representative, including the following:
The personal representative must be at least 18 years old, which is the age of majority in California.
The personal representative must be of competent and sound mind and competent as judged by the court (i.e., not incapacitated).
An individual may not serve as a personal representative if that 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.
An individual may not serve as a personal representative if there are specific grounds for removal of the individual from appointment.
A non-resident of the U.S. may not serve as a personal representative - UNLESS the non-resident is specifically named as executor in the will.
A surviving business partner of the deceased individual cannot serve as a personal representative if there is an objection by someone (with an interest) in the will - UNLESS the business partner is specifically named as executor in the will.
In addition to these statutorily-imposed directives, there are other factors that warrant consideration by you (and ultimately the court) when nominating an executor and personal representative, including the following:
Whether the nominee has a conflict of interest with any other party that has an interest in the will, including the deceased individual’s heirs.
Whether the nominee had a business or personal relationship with the decedent or decedent’s family before the decedent’s death.
Whether the nominee is engaged in or acting on behalf of an individual, a business, or other entity that solicits heirs to obtain the person’s nomination for appointment as administrator.
Whether the nominee has been appointed as a personal representative in any other estate.
(See generally, Division 7, Part 2, Chapter 4 of the California Probate Code).
Contact Us Today to Help you With your Estate Planning Needs
If you wish to choose an executor of your will and personal representative of your estate, or if you are an executor and need guidance, the experienced estate planning attorneys at CKB VIENNA LLP can help. To learn more, contact us today at 909.980.1040, or fill out our online form.