Estate representative

Who can be the estate representative

The first step to figuring out who is or can be a representative of an estate is to find out if there is a will.

If there is a will

The will should name an executor. The executor named in the will is the estate representative.

It depends on if the case needs to go to probate court or not. If it doesn't, then a relative or one of the people listed as inheriting may be able to be an informal estate representative. The law sets out a priority list for who should be the personal representative if there is no executor named in the will, or if the person named can't do it. In general, a surviving spouse or children are given priority. But, there are exceptions. For example, if someone other than the spouse or children will inherit the property, they may get priority. Or maybe the beneficiaries agree that someone with less priority should be the personal representative.  If it does need to go to probate court, then the judge will decide based on the law.

If there is no will

Who will be the estate representative if there's no will depends on whether the case needs to go to probate court or not.

  • If the estate is small or the estate can pass to other people through simplified procedures informally, then a close relative, often the person who will inherit most of what is left behind, can be the informal estate representative as long as all the beneficiaries agree.
  • If the case has to go through a formal probate court case, then the court appoints an administrator to be the estate representative.

If someone dies without a will, the law gives a priority list for who should be the administrator. You can find the full list in Probate Code §8461. The surviving spouse or legal domestic partner is at the top of the list, with children in the second category, grandchildren in the third, and so on.

Get help if it's not clear

Sometimes, it is not clear who should be the estate representative. For example, maybe the will does not name an executor and more than one person has the same priority. Or there is a disagreement between heirs as to who should serve, or the person with the higher priority has a conflict of interest and many other complications. Talk to a lawyer if this may be your situation.

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