What are personal representatives in probate? If so, who can be a personal representative in probate?
There are four different types of personal representatives in probate who can administer the estate. They are (1) executor, (2) administrator with will annexed, (3) administrator, and (4) special administrator.
An executor exists only when there is a will. Specifically, an executor is a person the decedent named in the will to carry out the terms of the will. An executor has the right to be appointed as the personal representative unless he is statutorily disqualified or declines the appointment.
Here, the decedent’s will failed to expressly name the executor or the named executors are unwilling or unable to administer the estate. In this case, the court will appoint an administrator with will annexed.
If the decedent died intestate (i.e. without a will), then the court will appoint an administrator of the estate. Any competent adult who is a US resident can be appointed as the administrator. However, there is a statutory list of priority as to the appointment of the administrator. The order or priority is as follows:
1. Surviving spouse or domestic partner
4. Other issue
6. Brothers and sisters
7. Brothers’ and sisters’ issue
9. Grandparents’ issue
10. Predeceased spouses’ or domestic partner’s children
11. Predeceased spouse’s or domestic partner’s other issue
12. Other “next of kin
13. Predeceased spouse’s or domestic partner’s parents
14. Predeceased spouse’s or domestic partner’s parents’ issue
15. Decedent’s conservator or guardian of the estate acting in that capacity at the time of death…provided he has filed a first account and is not acting in the same capacity for any other person
16. Public administrator
18. Any other person
As long as someone with higher priority is eligible and has not waived the right to priority, the court has no discretion to appoint someone with lower priority.
The court can appoint a special administrator if immediate action must be taken and the probate petition has not yet been granted and letters have not been issued.
After the personal representative (other than a special administrator) is issued letters, he then has the power to administer the estate.