Contesting a Probate Administrator

By Beverly Bird

Dying without a will can leave your heirs unhappy in more ways than one. When an individual dies intestate, the court takes over to determine how his estate is settled. The court decides who receives his property, distributing it to his closest living relatives. More distant kin and friends usually receive nothing. The same applies to appointing an administrator -- the individual who oversees the probate process. The court decides who will manage the estate, usually choosing from among the decedent's closest kin. Other heirs may not be happy with the choice.

Statutory Administrators

Statutory provisions regarding who is entitled to act as administrator usually mirror the state’s laws of intestate succession for rights to inherit. For example, in New York and Massachusetts, the decedent’s surviving spouse has first right to the position. If she chooses not to serve, the decedent’s children are next entitled to administer the estate, followed by more distant kin. Generally, the court will appoint one of the decedent’s creditors only if all his known relatives predecease him or don't want the position.

Application Procedure

In most cases, the court will appoint an administrator who has applied for the position. For example, the decedent’s widow might not feel up to the job. One of her children might then petition the court for the right to settle the estate instead. In many jurisdictions, the decedent’s spouse must first waive her right to serve. The decedent’s child then submits a petition to the court, along with her waiver, seeking appointment. The court reviews the petition. If a judge approves it, he gives the applicant permission to serve copies on all other heirs. In most states, he must also publish a notice in the newspaper, alerting any unknown heirs that he seeks the position as well.

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Objections

If the decedent’s other children or relatives object, they have a limited period of time in which to act, usually about 30 days. In most states, they must do so in writing and file the objection with the probate court. One or more heirs might lodge objections. If the court receives any challenges to the appointment, the clerk schedules a hearing. During the proceedings, objectors must “show cause” for their objections and present their arguments to a judge. The judge will either decide to appoint the petitioner anyway, or he will appoint someone else. This individual might be one of the objectors, or it could be someone who never became involved in the debate at all if a judge deems that person more suitable for the position.

Grounds

Good cause involves admissible grounds. An individual generally cannot object to the petitioner’s request for appointment simply because he wants the job himself. In this case, he can simply file his own petition requesting appointment. To contest the appointment, he must have a statutory reason for his challenge, permissible under his state’s laws. For example, in New York, an objector might allege that the petitioner is incompetent, doesn’t live in the state, is a convicted felon, or prone to substance abuse, dishonesty, or rash decisions. The objector must also prove his allegations.

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How to Appoint an Executor to Probate in California
 

References

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