The death of a parent, no matter how old you are, is never easy to accept. If you are an adult child who recently lost your mother, you are undoubtedly still going through the grieving process. At the same time, you may be feeling pressure to get moving with the administration of your mother’s estate. The situation will only be worse if you have a situation where the family cannot agree on who should oversee the administration of the estate. If you find yourself in that situation, it is important to know how the law views such a conflict. Toward that end, we’ll explore what happens if the family can’t agree on who should administer your mother’s estate.
What Happens Following a Death?
When you experience the death of a parent, it is difficult to focus on anything but the emotional impact of your loss. Nevertheless, there are practical and legal steps that must be taken in the days, weeks, and months after someone dies. Among the most important of those is to initiate the probate of the estate. Probate is the legal process that identifies, values, and eventually distributes a decedent’s assets. Probate also allows a Will to be authenticated or challenged, creditors to be notified and file claims against the estate, and all debts of the estate to be paid. Who oversees this process will depend, first and foremost, on whether or not the decedent left behind a Last Will and Testament.
Testate vs. Intestate Estates
A “testate” estate refers to the estate of a Testator who left behind a valid Last Will and Testament upon death. An “intestate” estate refers to the estate of someone who did not execute a Will prior to death. In a testate estate, the “Executor” is the person appointed by the Testator in his/her Will to oversee the probate of the estate. Although a court must ultimately approve that appointment, doing so is usually more of a formality as long as the individual meets the legal requirements for an Executor. If the decedent died intestate, any adult can petition the court to be named as the “Administrator” of the estate. For the most part, an Executor and Administrator perform the same duties and have the same responsibilities during the probate of an estate.
What Happens If More than One Person Wants to Be the Administrator?
If your mother did not execute a Will prior to her death, the court will have to appoint someone to be the Administrator of her estate. If more than one person petitions to be the Administrator, the court will be forced to choose among the petitioners. In California, Section 8461 of the Probate Code governs the order of priority for the appointment of an Administrator. According to that section, the order of priority is as follows:
(a) Surviving spouse or domestic partner as defined in Section 37.
(d) Other issue.
(f) Brothers and sisters.
(g) Issue of brothers and sisters.
(i) Issue of grandparents.
(j) Children of a predeceased spouse or domestic partner.
(k) Other issue of a predeceased spouse or domestic partner.
(l) Other next of kin.
(m) Parents of a predeceased spouse or domestic partner.
(n) Issue of parents of a predeceased spouse or domestic partner.
(o) Conservator or guardian of the estate acting in that capacity at the time of death who has filed a first account and is not acting as conservator or guardian for any other person.
(p) Public administrator.
(r) Any other person.
Accordingly, if your mother’s surviving spouse also petitions to be the Administrator, he/she will have priority over your petition. If there is no surviving spouse, or the surviving spouse does not want to be the Administrator, the only other person who would share the same level of priority as you would be a sibling or yours (another adult child of the decedent). If more than one adult child of a decedent petitions to be the Administrator, the court will review the petitions and may set the matter for a hearing so the judge can question the petitioners. After which, the judge will appoint one of the petitioners to be the Administrator.
Please download our FREE estate planning checklist. If you have additional questions or concerns about administering an estate in California, contact us at the Northern California Center for Estate Planning & Elder Law by calling (916)-437-3500 or by filling out our online contact form.
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