What is the difference between an Executor and a Personal Representative?
A Personal Representative in a probate (an “Executor or Executrix” if the person was named in the decedent’s Will, or an “Administrator” if not named or no Will existed) is the individual appointed by the Probate Court to faithfully administer a decedent’s estate for the benefit of the decedent’s creditors and beneficiaries. Failure to perform his/her duties faithfully could be cause for removal. A Carlsbad probate attorney can defend the removal (if representing the Personal Representative) or seek removal of a Personal Representative (if representing a creditor or beneficiary) by filing a petition for removal.
Naming an individual as Executor in your Will gives that person the authority to act on your behalf after your death. Others can object to his/her appointment by the Court, but without cause the objection will not carry much weight against someone nominated in your Will. If your Will does not name an Executor, or you pass away without a Will, California Probate Code Section 8461 defines priority for appointment of your Administrator in Probate Court.
Who Will a Probate Court Name as Personal Representative if There is no Will in California?
California Probate Code Section 8461 states that the Probate court should appoint a Personal Representative in the following order:
- Surviving spouse or domestic partner;
- Decedent’s children;
- Decedent’s grandchildren;
- Decedents other issue;
- Decedent’s parents;
- Decedent’s siblings (Brothers and Sisters);
- The issue of Decedent’s siblings;
- Decedent’s grandparents
- The issue of Decedent’s grandparents
- The children of the Decedent’s predeceased domestic partner or spouse;
- The other issue of the Decedent’s predeceased domestic partner or spouse;
- Other “Next of Kin”;
- The parents of the Decedent’s predeceased domestic partner or spouse;
- The issue of the parents of the Decedent’s predeceased domestic partner or spouse;
- The Conservator of the estate who was the Conservator at the time of the Decedent’s death provided they have filed a first account and are not Acting as a Conservator or Guardian for someone else;
- A Public Administrator
- Any Other Person
What are the Requirements to Serve as Personal Representative in California?
Pursuant to California Probate Code Section 8402(a), a person is not competent to act as personal representative in any of the following circumstances:
- The person is under the age of majority.
- The person is subject to a conservatorship of the estate or is otherwise incapable of executing, or is otherwise unfit to execute, the duties of the office.
- There are grounds for removal of the person from office under Section 8502.
- The person is not a resident of the United States.
- The person is a surviving business partner of the decedent and an interested person objects to the appointment.
Note, Paragraphs (4) and (5) above do not apply to a person named as Executor in the decedent’s will.
What are the Duties of a Personal Representative in California:
- Collect all outstanding payments owed to the estate including insurance claims, pensions and tax refunds, if any;
- Investigate whether there are payments, refunds, reimbursements and/or debts owed to the estate (e.g. checks that have not been cashed, dividends, utility refunds, etc.);
- Reimburse individuals who may have advanced the decedent’s last illness and funeral expenses;
- Pay creditors and expenses of the estate using the estate assets;
- Establish the availability of probate assets and determine their value;
- Manage the estate’s assets through the probate period;
- File tax returns for the decedent and the estate;
- Inform creditors of their right to present creditor claims during a narrowly defined creditor claim period;
- Determine whether creditor claims are genuine;
- Ascertain who the beneficiaries are and to what each is entitled; and
A Personal Representative may be Personally Liable for some of the Following:
- Improper or negligent management of assets;
- Wrongful payment of creditors (excess payment);
- Late filing of (or failure to file) tax returns;
- Distributing property to beneficiaries before paying creditors or taxes;
- Failing to collect debts owed to the estate.
For What Reasons May a Personal Representative be Removed?
Pursuant to California Probate Code Section 8502, A personal representative may be removed from office for any of the following causes:
- The personal representative has wasted, embezzled, mismanaged, or committed a fraud on the estate, or is about to do so.
- The personal representative is incapable of properly executing the duties of the office or is otherwise not qualified for appointment as personal representative.
- The personal representative has wrongfully neglected the
estate,or has long neglected to perform any act as personalrepresentative.
- Removal is otherwise necessary for
protectionof the estate or interested persons.
- Any other cause provided by statute.
Probates are “statutorily driven”, meaning to remove (or defend) a Personal Representative, one must fully understand the California Probate Code, California Rules of Court, and the local Rules of Court. These statutes and rules are complex and working with a probate attorney in Carlsbad can give you a head start in the process.
The Personal Representative should work with an experienced probate lawyer to guide him/her through the Probate process in Court. If the Personal Representative fails to faithfully perform his/her duties, he/she could be removed and surcharged by the Court.
Feel free to reach out to a Carlsbad probate lawyer if you have a probate questions in California.
Lastly, creating a comprehensive estate plan ahead of time will help to save your loved ones the headache of going through the full probate process. Please contact us if you would like to learn more about have you can plan for your estate. (760) 933-8254.