THE ATTORNEY'S CODE: WHO CAN PROBATE AN ESTATE?

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By Stephen C. Ross, Esq.

February 19, 2014 (San Diego County) – Probate is a court-supervised process whereby a decedent’s (deceased person) real and/or personal property is located, its value determined, his or her final bills and taxes paid (if any) and any remaining assets are distributed to his or her beneficiaries and/or heirs.

The California Probate Code provides any interested person may, any time after the death of a person leaving a Will, petition the court for appointment of a personal representative to probate the decedent’s Will. Typically, the petitioner is the proposed personal representative.

“Interested person” includes an heir, devisee, child, spouse, creditor, beneficiary or other person with a property right in or claim against the decedent’s estate that could be affected by the probate proceeding.

“Personal representative” includes the executor, administrator, administrator with the Will annexed, special administrator, successor personal representative or a public administrator.

Typically, if the Will does not name an executor or the decedent dies without a Will, the court will appoint an administrator in the order established by Probate Code Section 8461. The Section 8421 order of appointment is as follows:

          1. Decedent’s children;

          2. Decedent’s grandchildren;

          3. Decedent’s other issue;

          4. Decedent’s parents;

          5. Decedent’s brothers and sisters;

          6. Issue of decedent’s brothers and/or sisters;

          7. Decedent’s grandparents;

          8. Issue of decedent’s grandparents;

          9. Children of a predeceased spouse or domestic partner;

          10. Other issue of a predeceased spouse or domestic partner;

          11. Other next of kin;

          12. Parents of a predeceased spouse or domestic partner;

          13. Issue of the parents of a predeceased spouse or domestic partner;

          14. The conservator or guardian of the estate at the time of the decedent’s

               death who has filed a first account and is not acting as conservator or

               guardian for any other person;

           15. The public administrator;

           16. Decedent’s creditors; and,

           17. Any other legally competent person.

A person may not act as the decedent’s personal representative if he or she is: under the age of majority; subject to a conservatorship of the estate; otherwise incapable or unfit to execute the duties of office; or, shown to have committed acts constituting grounds for removal as personal representative pursuant to Probate Code Section 8502. In addition, a person may not act as executor of a Will if he or she has feloniously and intentionally killed the decedent or been convicted of false imprisonment, elder abuse, dependent abuse, embezzlement or theft by caretaker against the decedent.

Stephen represents estate planning, trust, will, probate, trust administration, business formation, stepparent adoption and family law matters. He conducts estate planning and probate seminars throughout San Diego County. For more information or to schedule a seminar contact Stephen at (619) 795-8524, stephen@stephenrosslaw.com or visit www.stephenrosslaw.com.

Disclaimer: Information contained in this article is believed to be accurate. However, you should seek professional legal advice before relying on the information. Stephen is not licensed to practice law in any state other than California and “The Attorney’s Corner” is not intended as an advertisement.

Visiting Stephen’s website does not create an attorney-client relationship

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