Can One of the Heirs Be a Probate Executor?

By Teo Spengler

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.

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.

Named Executors

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.

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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.

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.

Disqualification

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.

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