What happens when a person dies leaving a will that names no proposed executor or an executor who declines or is otherwise unable to act? When the office of executor is vacant, the Probate Code provides that the order of priority for the appointment of decedent’s personal representative is generally the same as would apply if the decedent had died intestate (i.e., giving preference first to the decedent’s surviving spouse, then to children, grandchildren, parents, siblings, and so on, down the line of succession.)[1] But, as set forth below, there are some notable exceptions to this general rule.[2]
First, a beneficiary who takes under the will has priority to be appointed decedent’s personal representative over an individual who does not take under the will – even if that beneficiary would not have been entitled to priority through the normal order of intestate succession. For example, if a decedent names her father as a beneficiary of her will, but not her adult child, and the decedent’s will does not name an executor, then decedent’s father would have priority of appointment over the adult child as the administrator of decedent’s estate, even though the adult child normally would have higher priority had the decedent died intestate.[3]
However, there is an important exception to this exception – the court has discretion to appoint as administrator, a person who does not take under the decedent’s will, if: (i) that person takes, as a statutory interest,[4] a “substantially greater” portion of the decedent’s estate than the named beneficiary in the decedent’s will, and (ii) if granting priority of appointment to the unnamed beneficiary “appears appropriate under the circumstances.”[5]
Finally, when there is no named executor, a beneficiary or multiple beneficiaries who take more than 50% of the estate under the decedent’s will, have priority over other persons who take a lessor amount under the will. But as an exception to this exception – if the named beneficiary or multiple beneficiaries who together take more than 50% of the estate nominate a separate individual (who is not required to be an heir or beneficiary) as the decedent’s administrator, then that nominee will have priority over other persons who take under the will. For example, if one beneficiary is to receive 60% of the estate and another is to receive 40% of the estate, the beneficiary who will receive 60% of the estate has priority to be appointed administrator of the decedent’s estate over the beneficiary who would receive 40%, and if the beneficiary who would take 60% of the estate nominates a third-party to act as administer of the estate, then that third-party would then also have priority over the beneficiary who would take 40% of the estate.[6]
Thus, it is clear that when the decedent’s will does not name an executor, special rules apply regarding the appointment of the administrator of decedent’s estate, and the normal order of priority of appointment of an administrator may not apply. Estate planners should be mindful of these exceptions (and exceptions to exceptions) to the general rule of priority of appointment, and, if necessary to effectuate their client’s intent, may want to include a provision into their estate planning documents to negate the application of this special rule of appointment.
[1] See Probate Code § 8461.
[2] See Probate Code § 8441.
[3] See id.
[4] The Law Review Commission Comments to Probate Code § 8441 indicate that a “statutory interest” in this context refers both to an intestate interest (pursuant to Probate Code §§ 6400 et seq.) as well as to an omitted heir share – i.e., a child or spouse who was inadvertently omitted as a beneficiary may still receive a share of the estate. See Probate Code §§ 8441(b) and Law Revision Commission Comments; §§ 21610, et seq. (omitted spouse); §§ 21620, et seq. (omitted children).
[5] See Probate Code § 8441.
[6] See id.
