When a person dies, one of their close acquaintances (generally their estate planning attorney, the nominated executor or a family member) will usually have the information needed to locate their will (that is if a will had been created). If there is a will, chances are the creator of the will (called the testator) nominated someone they trust or a private professional fiduciary to act as executor of their will.
What Does It Mean to Be Nominated to the Role of Executor?
The executor of a will (also called the executor of the estate) refers to the person whom the court has appointed to preside over a decedent’s estate. When determining whom to appoint as executor, the court generally will prioritize the person whom the decedent nominated in their will to serve; however, there are also some instances in which the court may choose someone other than the nominee to fill the role. We will go over these in a later section.
While the appointment of an executor may seem like a minor detail when compared to all the other things happening following the death of a decedent, it is a detail that should not be overlooked, as the executor is who is responsible for protecting estate assets, and, ultimately, distributing them to the beneficiaries of the estate in accordance with the terms of the will.
What does an executor of a will do? Once appointed, an executor’s duties generally include:
- Collecting estate assets
- Notifying and paying the decedent’s creditors and taxes
- Making distributions to beneficiaries
There’s no shortage of responsibilities when it comes to acting as executor, so if there are any concerns about the capacity of the executor nominee to fulfill these responsibilities, it is advisable to raise them early in the process.
Who Is the Executor of an Estate Without a Will?
Technically, there isn’t an “executor of the estate” when there is no will, or when the court appoints someone who was not designated in the decedent’s will to serve as personal representative. So, if a decedent died without a will (i.e., they “died intestate”), or if the decedent died with a will but the court appoints someone other than the designated executor, the appointee will be what is known as an administrator of the estate.
How do you become administrator of an estate? Is the spouse automatically the executor/administrator? When appointing an administrator, the court typically gives first preference to the surviving spouse. If they decline, the next preference is generally given to the children of the decedent, followed by the decedent’s grandchildren, parents and siblings.
As far as an administrator’s duties go, they are basically the same as an executor’s, with the only difference being that an executor distributes estate assets to beneficiaries following the instructions laid out in the will, whereas the administrator, in the event the decedent died without a will, distributes estate assets to heirs according to California’s intestate succession laws.
Who Can Be an Executor of a Will in California?
While the decision of who can be an executor of a will is really something the testator should spend time thinking about when creating their will, it is something estate beneficiaries, heirs, the surviving spouse and creditors (who collectively are regarded as “interested parties”) may also need to consider should the testator’s nominee refuse their appointment, or interested parties successfully dispute the nominee.
Reasons why a nominated executor may wish to refuse their appointment include:
- They are too occupied with their current job or familial responsibilities to take on the role.
- They don’t have the legal and/or financial expertise to diligently perform their duties.
- They do not wish to be executor.
- They lack the mental capacity to fulfill the role due to age or illness.
- They have conflicts of interest or are otherwise ineligible for appointment due to their conduct (e.g., if they are alleged to have perpetrated elder financial abuse against the decedent).
When a petition for probate is filed with the probate court following the testator’s death, all interested parties are supposed to receive notice of the date and time of the initial probate proceeding. If they disagree with the person whom the decedent nominated to be the executor of their will, they can appear at the proceeding to contest the appointment. It would be advisable for them to retain an experienced attorney to argue their position.
While the probate court will hear the arguments of the nominee and interested parties, it ultimately has the final say when it comes to the appointment of an executor.
Reasons why the court may reject a nominee for executor include:
- The nominee doesn’t meet California’s basic executor requirements (which we cover in the next subsection).
- The court believes the nominee to be incapable of carrying out the duties required of their role.
- The court has reason to believe the nominee could engage in executor misconduct or be negligent with the estate’s finances.
Although it is rare for the court to deny the testator’s nomination for executor, if it does, it generally will hold a formal hearing that all interested parties can attend. There, it will appoint a person who is willing and well-suited to fill the role of executor.
Only after the court has officially appointed an executor can the appointee access estate assets and begin the administration process.
What Are California’s Legal Requirements for an Executor of a Will?
While California does not have many executor requirements, the requirements it does have must be met without exception for anyone who has been nominated to the role.
The following would disqualify a person from acting as personal representative, according to California Probate Code section 8402:
- The nominee is under the age of majority (18 years old).
- The nominee is subject to conservatorship, or is otherwise incapable or unfit to execute the duties of the office (i.e., they are not of sound mind).
- There are grounds for removal of the personal representative from office under Section 8502.
- The nominee is not a resident of the United States.*
- The nominee is a surviving business partner of the decedent and an interested person objects to the appointment.*
*The last two bullets do not apply to someone named executor or successor executor in a decedent’s will.
As for the other executor requirements, “of sound mind” basically means that the nominee has not been deemed incapacitated by the court. The court may deem a nominee incapacitated if they have advanced Alzheimer’s disease or are unconscious due to a coma, for example.
While California does allow out-of-state executors, nominating an out-of-state executor may not be the best idea, as they will need to make frequent trips to the town in which the decedent resided to perform their duties.
Many states impose special restrictions on out-of-state executors and require executors to not have any felony convictions; however, California does not require executors to conform to these standards.
Who Is Normally the Executor of a Will?
As previously mentioned, if the nominated executor meets California’s legal requirements for an executor of a will, there are no hard and fast rules as far as whom a testator should select to be their will’s executor. What we have seen in our probate practice is that testators usually nominate a trusted family member or friend to the role, though some also pick private professional fiduciaries.
While it may seem like an obvious choice for the testator to nominate a close relative or acquaintance to be the executor of their will, the nomination could present complications due to potential conflicts of interests if the person selected stands to inherit from the estate. While an executor who is also a beneficiary could take special care to ensure their personal interests never are placed above the collective interests of the beneficiaries, this may be hard for some executors to do. Additionally, if they are partial toward their own interests, it would be considered a breach of their fiduciary duty, which could give rise to a fiduciary misconduct claim being brought against them.
That being said, below are some of the qualities testators should look for when nominating an executor in their will:
- They are responsible and can make sound decisions.
- They have good finances of their own and understand how to manage and grow assets.
- They are emotionally stable.
- They do not have a conflicting interest in the estate (e.g., if the testator’s estate planning attorney were appointed to the role of executor, they would personally gain from bringing litigation on behalf of the estate).
- They are younger than the testator (although the testator could simply nominate a backup executor who is younger to take over should the original nominee not survive the testator).
If estate administration is ongoing, and you’ve noticed that the executor lacks one or more of the qualities mentioned above, which is affecting their ability to ethically and diligently carry out their duties, our estate attorneys can help you investigate your suspicions, and if necessary, bring a claim against them to potentially have them removed and replaced.
Is an Executor of a Will Necessary?
One of the most frequently asked questions our probate attorneys receive is: Does there have to be an executor of a will?
The reason why one may be asking this question is to find out whether they can avoid the long and expensive probate process. The good news is that there are some instances in which probate can be avoided, thereby eliminating the need for an executor of the estate.
Probate is a court-supervised process for authenticating a decedent’s will, among other things. While there exists no requirement within the law for you to probate a will, it will be next to impossible for you to gain legal ownership of property that was left to you by will without the property passing through probate, that is unless the decedent made prior arrangements for you to be transferred title to property through a trust, transfer-on-death deed or beneficiary designation. In California, there are a couple of other ways to avoid probate as well, but they only are applicable to certain parties and estates of a certain value.
Here are some ways to avoid probate that could make an executor of a will unnecessary:
- Trusts: A trust is a type of fiduciary arrangement in which a third party (the trustee) holds property for the benefit of trust beneficiaries. Since trust property generally is not subject to probate, the probate process can potentially be avoided if most of the decedent’s property had been held in trust.
- Transfer-on-Death Deed: A TOD deed is a type of document that conveys property (e.g., cars, real estate) to the beneficiary who has been designated on the deed once the title holder dies. TOD deeds tend to supersede the title holder’s will.
- Beneficiary Designation: Title holders can use beneficiary designations to directly transfer certain payable-on-death assets (e.g., bank accounts, retirement accounts, life insurance policies) to their intended beneficiaries. Beneficiary designations generally supersede the terms of a decedent’s will.
- “Shortcut” Probate Petition: There are petitions (we at Keystone call them “shortcut petitions”) that can be filed in the probate court, which, when available, allow the court to transfer property to the heirs and beneficiaries with a single hearing, as opposed to a full probate proceeding. Examples of shortcut petitions include:
- Spousal Property Petitions: These petitions, which can only be used by surviving spouses and registered domestic partners, give the court the power to confirm and convey ownership of property to the surviving spouse or partner.
- Petitions for Succession to Real Property: These petitions enable any person, not just a spouse, to transfer the decedent’s ownership interest in real property valued at $184,500 or less to heirs or beneficiaries.
- Small Estate Affidavit: The rightful heirs to an estate can file a Small Estate Affidavit to determine the succession of property and transfer property to themselves if a decedent’s estate is valued at $184,500 or less.
Bypassing probate comes with many advantages: It will save you both money and time. If estate administration has not yet begun, it is worth consulting with an attorney to see if any of the aforementioned options could be used to help the decedent’s estate avoid probate.
Still unsure about who can be executor of a will or if an executor of a will is required? Ask our probate attorneys.
One of the most difficult times of the grieving process generally occurs immediately following a loved one’s death. Unfortunately, that is also the time when probate is generally opened and an executor is appointed to manage the estate.
If you do not have the emotional capacity to play an active role in these processes or are unsure about how to navigate important estate decisions, our probate attorneys are well-equipped to help. Call Keystone today to schedule your free consultation with an experienced attorney.
