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Who's in charge when someone dies without a will?

June 26, 2017

 

(The companion article titled Dying Without a Will explains who would inherit from the estate of a person who dies without a will. That article can be found here.)

 

When someone dies with all of their assets held by a revocable trust, the trustee of the trust would need to administer the trust (outside probate court). When someone dies with a will, the executor of the will would need to administer the estate (inside probate court). But when someone dies without a will or trust, a case would need to be filed in probate court to have someone appointed as the "administrator" to act as "personal representative" of the estate.

 

Do some people have better rights than others to be appointed administrator? Yes. California law has a default rule that gives the following people, in descending order, priority appointment rights:

 

- Spouse or domestic partner

- Children

- Grandchildren

- Other issue

- Parents

- Siblings

- Issue of siblings

- Grandparents

- Issue of grandparents

- Children of a predeceased spouse or domestic partner

- (and more)

 

Are there exceptions to the default rule? Yes, several. For example:

 

(a) The estranged-spouse exception

 

A surviving spouse won't be given first-place priority if the spouse is (i) a party to a divorce or support action against the decedent, and (ii) the two spouses were living apart when the decedent died. The surviving spouse's priority level would be lowered to the level below that of the decedent's siblings (or seventh place).

 

(b) The minor exception

 

If the person to be appointed is a minor, the court has the discretion to appoint someone else.

 

(c) The not-if-you-don't-inherit exception

 

Priority appointment rights only apply if the person to be appointed is either (i) entitled to part of the decedent's estate, or (ii) entitled to inherit under the will of, or entitled to part of the intestate estate of, a deceased person who is entitled to part of the decedent's estate.

 

However, a strange set of circumstances would be needed for this exception to apply.

 

(d) The guardianship-or-conservatorship exception

 

If the person to be appointed is subject to a guardianship of the estate or a conservatorship of the estate, the court has the discretion to appoint that person's guardian or conservator. The court also has the discretion to bypass that person's guardian or conservator and appoint someone else.

 

How many administrators can be appointed? The probate court is allowed to appoint more than one administrator. It might do this if it is concerned that a single administrator might try to rule with an iron hand. Appointing co-administrators would be a way for the court to encourage people to act in a more cooperative and compromising manner.

 

 

 

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