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When can the court choose a personal representative?

by | Mar 20, 2024 | Estate Planning

When an estate goes to probate, the court will typically approve the appointment of the personal representative (the executor/administrator) named in the will. However, in some instances, the court may have to appoint one.

Here are three examples of such instances:

If there is no will

In cases where there is no will, the court will make a decision based on whether the estate needs to go to probate or not. If an estate is small or can be passed to beneficiaries through simplified procedures informally, a close relative, which in most cases is the person who will inherit a significant percentage of the estate, can be named the informal estate representative.

If an estate needs to go through a formal probate process, the court will appoint an administrator according to a priority list, which starts with the surviving spouse or domestic partner. If the surviving spouse or domestic partner cannot serve for some reason, the children will be considered, then the grandchildren and so on.

If the will does not name an executor

If a will is present but does not name an executor, or the named executor is unable to serve or dead when probate time comes, the court may also need to appoint an executor.

The executor does not meet the court’s requirements 

Before the probate court accepts an executor’s appointment, the named party needs to meet certain requirements. For example, a conflict of interest should not exist, the executor may be required to purchase a surety bond and so on. If a named party fails to meet any of the requirements, they may not be appointed. Hence, the court may need to pick another party.

If you are drafting your estate plan, be extra careful when naming an executor. Consider legal guidance to avoid costly mistakes.