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Probate and Estate Matters

When a person dies, their estate must be administered in accordance with the will or the laws of intestacy. Who has the right to administer the estate? This article deals with common situations which arise and the rights of parties to be appointed to manage the estate.

Who is the Personal Representative?

The person who administers a Probate Estate is called the personal representative. This is a general term used to refer to either the executor or the administrator. Which one of these is actually appointed to office depends on whether the decedent left a valid Will.

Who is the executor?

If the decedent made a Last Will and Testament, then it is likely he/she would have named an executor. Once the Will is submitted for probate, the court determines its validity. If the court believes the Will is valid, then it admits the Will to probate. If the instrument named an executor, then this person is granted letters testamentary. This is the formal appointment of the executor by the court.

When is the successor executor appointed?

Most people name a successor executor in their Last Will. This person is given the option of acting in the estate if the first mentioned executor is unavailable or unwilling to act in the role. This would happen for example where the first executor has already died, has developed a mental illness or simply waives their right to take the role.

What if the executor dies during the appointment?

In most states, where the personal representative passes away, the legislation prevents the executor's executor from taking on the role, unless the Will specifies otherwise. Usually, the position is given to the named successor or in the order of priority for appointing an administrator.

What if there is no executor?

There are circumstances where the Will does not make a designation of any person to act as executor. If there is a valid Will in place, the court grants letters to an administrator. The order of preference is generally the decedent did not leave a Will. This formal appointment is called letters of administration with the will annexed.

The order of priority for appointing an administrator varies from state to state. Some states give preference to the decedent's spouse and children, others do not. Generally, the list of acceptable administrators includes the deceased's relatives and next of kin. Where there's no surviving family, an officer of the state or even a stranger is possible as the final option.

For example, in Connecticut, the appointment of administrators is governed by Title 45a Probate Courts and Procedure, section 45a-303(c).

This section states that provided they are entitled to share in the deceased's estate, the following persons have priority to be administrator:

  • The spouse;
  • Any of the deceased's children (or his/her guardian);
  • Any grandchild of the deceased (or his/her guardian);
  • The deceased's parents;
  • Brother or sister;
  • Next of kin;
  • Any other person deemed proper by the court.

The legislation also provides for disqualification of unfit persons. The criteria differ among the jurisdictions but often prohibit any person from being appointed as personal representative if they have a criminal record where the beneficiaries make a reasonable objection to their appointment.

If there is no executor willing and able to take on the position, the probate estate can fall in the hands of a stranger or someone the decedent would not want to act in this role. This is why every eligible person is urged to make a valid Last Will and Testament and to appoint back up executors.

If a member of your family has passed away and you're unsure who is to be appointed, you can either contact an attorney or the appropriate county probate court for assistance. You can also research the legislation and obtain probate forms online. In any case, make sure you research your rights and responsibilities and familiarize yourself with the probate process.

Paul DeLorenzo