The time following a person’s death can be as logistically difficult as it is difficult emotionally. There is a lot that will need to get done, such as making funeral arrangements for the decedent, paying their debts, and distributing their assets according to their will or state intestate succession laws. One can understand why a personal representative (an executor or administrator of the estate) would need to be appointed to oversee this process.

If the deceased died with a spouse, is the spouse automatically executor of their estate? Who can be personal representative if the decedent did not have a spouse? Are there certain requirements for who can be executor of a will? Are there certain requirements for who can be administrator of an estate?

It’s natural to assume the person closest to the deceased — who, if they were married when they died, was likely their surviving spouse — would be entitled to manage their estate; however, you may be surprised to learn that this is not always the case, particularly when the spouse is not a legal resident of the United States.

Continue reading to discover under what circumstances a deceased person’s spouse will be given priority to serve as the personal representative of their estate and under what circumstances they won’t. You will also learn about the basic requirements a person must meet in order to be appointed.


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Understanding the Basics of Estate Administration

You’ve probably heard the word “estate,” but you may not know what it refers to. A person who dies is referred to as the decedent, and their estate is made up of the property they owned when they died.

If the decedent left behind an estate that does not avoid probate, a personal representative will be appointed to take charge of it. When a person dies with a will that nominates someone to the role, that person is known as the executor of the estate. When a person dies without a will (i.e., they died intestate), that person is known as the administrator of the estate.

Trusts require different procedures than estates. Learn how trusts work after death.

How Is a Personal Representative Appointed?

To manage the estate of a decedent, it usually is required for one to visit the court to initiate estate administration. Administration is the process of transferring the decedent’s estate to estate beneficiaries and heirs, and other parties that are entitled to receive it, and it is necessary when a person passes away without a trust or jointly-titled assets.

Whether the decedent died with or without a will, it is necessary for their estate to pass through the probate process. One of the only exceptions is if the estate is worth less than the threshold requirement determined by the Judicial Council of California (which is $184,500 as of this writing), in which case the estate can pass outside of court through a much less complex process under Probate Code section 13100.

Who Can Administer the Estate of a Decedent?

Any interested person may at any time after the death of a decedent petition the court for appointment of a personal representative or to probate the decedent’s will.

“Interested persons” can include heirs, devisees, children, surviving spouses, beneficiaries, creditors or any other person having a property right in or claim against the decedent’s estate that may be affected by the proceeding.

“Personal representative” can mean the executor/administrator, administrator with will annexed, special administrator, successor personal representative or public administrator.

The personal representative of an estate of a decedent who died without a will generally is referred to as the administrator, and they usually are bound to distributing the estate in accordance with California’s intestate succession statutes. The personal representative of an estate of a decedent who died with a will generally is referred to as the executor, and they usually are bound to distributing the estate in accordance with the terms of the will, once the will is admitted to probate.

What Are the Requirements for Serving as Personal Representative?

Whether you are the named executor in a will, or are looking to be appointed as the administrator over an intestate estate, it is important to familiarize yourself with the requirements of the role.

The requirements will be different depending on whether the decedent died with or without a will.

Who Can Be Personal Representative When a Person Dies Without a Will?

When a decedent passes away without a will, they leave no instructions behind as to how they want their estate administered. This type of estate is referred to as an intestate estate.

Since there is no will to refer to, the courts will look to the Probate Code for guidance. The Probate Code provides a list of individuals who are entitled to serve as the administrator in an order of priority.

The court must appoint a person with higher priority who is otherwise eligible to serve and has not waived the right to appointment. However, if a person with higher priority fails to claim appointment as the administrator, the court may appoint any person who does claim appointment.

Probate Code section 8461 provides a tiered list of 18 classes of individuals, in order of priority, to serve as the administrator of an estate. The first few classes include the following: 1) the decedent’s surviving spouse or domestic partner; 2) the decedent’s children; 3) the decedent’s grandchildren; 4) other issue of the decedent; 5) the decedent’s parents; and 6) the decedent’s brothers and sisters.

A few limitations do exist to the order of priority that are important to keep in mind. If the surviving spouse or registered domestic partner of the decedent is a party to a divorce proceeding and was living apart from the decedent at the time of death, then the surviving spouse or domestic partner has priority after the decedent’s brothers and sisters.

In addition, a surviving spouse or registered domestic partner, relative, or relative of a predeceased spouse or registered domestic partier is entitled to priority only if the individual is entitled to succeed to all or part of the estate, or takes under the will.

An individual who has priority also has the option of nominating another individual to serve if they do not wish to do so. If the nominator is the decedent’s surviving spouse, domestic partner, child, grandchild, other issue, parent, sibling or grandparent, the nominee will be next in priority after those in the class of the person making the nomination.

For example, if the decedent’s child made a nomination, that nominee would be placed in the priority class of the decedent’s grandchildren. Using the same example, if a different child of decedent were to seek appointment, that child would have priority over the nominated individual.

Who Can Be Personal Representative When a Person Dies With a Will?

If a person wishes to decide who will administer their estate after they die, they should do so by preparing a will and naming an executor. This type of estate is referred to as a testate estate. The executor is the person named in the will to administer the estate, and they have the right to appointment as personal representative.

In the will, the decedent may also give one or more persons the power to designate an executor. It is important for an individual listed as the executor to act promptly, because if they fail to petition the court for administration within 30 days from the date they had knowledge of decedent’s death, they may be held to have waived the right to appointment.

However, being nominated as the executor in a will is not absolute. There are two classes of executors who are unable to serve: 1) a person who feloniously and intentionally kills the decedent; and 2) a person convicted of false imprisonment, elder abuse or dependent adult abuse, embezzlement or theft by a caretaker, or who is liable under specified conditions for physical abuse, neglect or financial abuse.

There are also times where a decedent has prepared a will but has not listed an executor, or all the executors named in the will cannot or will not perform their duties. The individual who then administers the estate under the provisions of the will is referred to as the administrator with will annexed.

Persons entitled to appointment as administrator with will annexed are governed by the same priority as for the appointment of an administrator of an intestate decedent’s estate, except those who take under the will have priority over those who do not.

However, certain rules do provide the court with discretion to give priority to an individual who does not take under the will but who receives a statutory interest substantially greater than that which is devised under the will.

Under What Circumstances Might a Person Be Barred From Serving as Personal Representative?

Probate Code section 8402 provides guidance as to who cannot serve as the personal representative of a decedent’s estate.

More specifically, Probate Code section 8402 provides that a person may not act as the personal representative under the following circumstances:

(1) The person is under the age of majority.

(2) The person is subject to a conservatorship of the estate or is otherwise incapable of executing, or is otherwise unfit to execute, the duties of an executor/administrator.

(3) There are grounds for removal of the person from office under Section 8502.

(4) The person is not a resident of the United States.

(5) The person is a surviving business partner of the decedent and an interested person objects to the appointment.

The eligibility requirements for executors and administrators are largely the same, except for a few important differences.

First, a nonresident of the United Stated may serve as an executor or successor executor under a decedent’s will, but not as administrator.

Second, a surviving business partner of the decedent may serve as the executor or successor executor under the decedent’s will even if an interested person objects to his or her appointment, but they cannot serve as administrator if an interested person objects.

Estate of Wardani: Who Is a Legal Resident of the United States?

Estate of Wardani is a recent decision by the Court of Appeal that examines the issue of when a person is considered a legal resident of the United States for purposes of serving as the personal representative of a decedent’s estate.

In that case, Ramsey Waldani died intestate in 2016, survived by his wife Janine White El Wardani and daughter from a previous marriage, Alexandria El Wardani. Janine became appointed administrator of the estate based on her petition that stated she was a California resident.

During administration, Janine filed a creditor claim, and in support, added a declaration that included facts about her residence, including the fact that she moved to Mexico in 2014 and lived their full time because it was more affordable.

Janine’s authority expired after one year, and while she was waiting for it to be renewed by the court, the court approved her creditor claim. Alexandria then moved to set aside the creditor claim because it was approved during a time when no administrator had been appointed.

This led to Janine filing a status report with the court to advise them of the progress made in administering the estate. At the hearing on the status report on June 11, 2021, Alexandria objected, based on Janine’s foreign residence, claiming that this disqualified Janine from continuing to serve as administrator. Alexandria also filed her own petition to be appointed administrator.

Court Considers the Issue of the Administrator’s Country of Residence

The court ordered that both Janine and Alexandria file briefs on the issue of residency. In her brief, Alexandria argued that residency was “synonymous with domicile” for purposes of the Probate Code.

Although Alexandria had been under the impression that Janine lived in Bonsall, California, Janine informed the court at the June 11 hearing that she had never lived there and that the address provided on her petition was her brother’s address. Summarizing testimony offered at the June 11 hearing and Janine’s past declarations, Alexandria maintained that Janine resided in Mexico and was therefore statutorily barred from serving as the administrator of the estate.

Janine cited taxation cases construing state residency and reasoned in her brief that residency means the place to which a person is most closely connected.

She filed an accompanying declaration describing her many ties with the U.S. Janine declared that while she owned a home in Mexico, she was not a citizen there and had no intention of ever becoming a citizen or Mexican resident. She stated that she grew up in California, and that all her friends and both her children lived there, as did her extended family.

Janine also noted how she had a California driver’s license, voted and paid income taxes in California, and filed federal income taxes in the U.S. Her bank accounts were in San Diego, and she had not opened any accounts in Mexico. Her medical providers, accountant, and attorneys were all in California. Since 2016, Janine had been receiving mail solely through a P.O. Box in California and did not receive mail in Mexico.

Janine claimed that the only reason she stayed in Mexico was because she owned her house there free and clear and could live there inexpensively. She alleged that Ramsey’s actions had placed her “in a state of financial limbo” since his death, and that she would sell her home in Mexico and return to the U.S. as soon as the probate case ended.

California Court of Appeal Clarifies What It Means to Be a Resident of the United States

The trial court agreed with Alexandria. It viewed Janine’s 2019 creditor claim declaration as more credible than her more recent declaration on residency. However, the trial court highlighted that even in the more recent declaration, Janine stated “As soon as the case is over, I will sell my home in Mexico and return to live permanently in the United States.”

Based on this statement, the trial court inferred that Janine had no intention of living in the U.S. during administration and concluded that she was not a United States resident competent to serve under Probate Code section 8402.

In analyzing the case, the Court of Appeal independently construed the meaning of “resident” in Probate Code section 8402 over the history of the code section, because the word “resident” is not defined in the Probate Code. It noted how Janine was suggesting that the term “resident” impliedly refers to the location to which the person is most closely connected.

Alexandria, on the other hand, argued that residency is synonymous with domicile — “residency involves a person’s physical presence in a particular place with the intention to make that place one’s home.”

In short, the Court of Appeal found that early cases equated residency with domicile and determined that those who were not domiciled in the United States could not serve as estate administrator. It found that the statute at all times required actual residence rather than temporary or transitory presence in the United States.

It further found that “despite any stated intent to return, a person is ineligible to serve as administrator if they leave the United States and set up a residence abroad, intending to remain indefinitely.”

It concluded that as a matter of law, a resident of the United States under Probate Code section 8402, subdivision (a)(4) is a person who actually lives in the United States and is not merely present temporarily. United States residency cannot be established by mere connections alone.

Unfortunately for Janine, there was substantial evidence supporting the finding that she did not reside in the United States and the Court of Appeal affirmed her removal as administrator.

Unsure whether you can be personal representative? Let us help you find out.

Who can be an executor of an estate? Who can be administrator of an estate? Unfortunately, there aren’t straightforward answers to these questions, as who can be personal representative depends on a variety of factors.

The attorneys at Keystone can tell you whether you are eligible to serve as a personal representative and help get you appointed to the role of executor/administrator if that is what you want. Call is today to schedule your free consultation.