A key function of an estate plan is to designate a person to act in your name after you’re gone. This person must be responsible for gathering your assets, paying off any valid debts and costs of administering your estate, and distributing the remaining property to your chosen beneficiaries. If you fail to designate such a person, California law will determine who fulfills this critical role.
Generally, the person who oversees your estate is known as your “personal representative.” California law also refers to a personal representative as an “executor” or “administrator.” All three terms describe the same function, although there is a legal distinction between their method of appointment.
An executor is a personal representative named in your will. You can name just about anyone as your executor. It does not have to be a relative or a beneficiary of your estate. Some people choose to name a professional, such as an attorney or trust company, as executor. However, a person under the age of 18 cannot serve as an executor, nor can anyone under a conservatorship (i.e., someone deemed mentally competent or unable to manage their own affairs).
You may also name two or more persons to serve as co-executors. Think carefully before you do this, because under the law, multiple executors must act in unison. This means one co-executor can effectively veto the actions of the other co-executors, which can lead to significant delays in the administration of your estate.
Your will should also name alternate executors in the event your first choice is unavailable for some reason. If none of your named executors is available then the court will appoint and “Administrator with Will Annexed.” They are called an Administrator since they were not named in the Will, but they will still carry out the terms of the Will as an Executor would.
An administrator is a personal representative appointed by the probate court to oversee the estate of someone who died without a will. The actual duties of an administrator are the same as an those of an executor. The critical difference is an administrator is determined by an order of priority established by California law.
If you have a surviving spouse or registered domestic partner, that person has highest priority to seek appointment as administrator, followed by your children, grandchildren or other descendants. If you died without a spouse or children, your parents would have priority, followed by your siblings and their descendants. If you have no living family members willing to assume the role of administrator, the court will appoint a county official known as the Public Administrator to oversee the estate. In some cases, the court may also named a creditor of the deceased person as administrator.
Don’t Leave It Up to the Court
You may be fine with leaving your estate in the hands of a court-appointed administrator. But if you want to exercise any control over who manages your affairs after your death, it is critical you sign a last will and testament naming an executor. A qualified California estate planning attorney can help you decide who the best person is to serve as executor. Contact the Law Office of Scott C. Soady in San Diego today to speak with an attorney right away.