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Who has the right to choose an executor or personal rep of an estate if named executor cannot serve because of incapacity?
Anonymous7 views3 answers
My mother's will names only one executor who is no longer capable of serving or choosing a successor. My cousin and I are beneficiaries. My mother's sister wants to choose herself. I would like my father (my mother's ex-husband). My cousin wants himself. I know there's a priority order in who is eligible to be executor or personal rep of an estate but does that same order apply to who has the right to choose? I thought I would have highest priority to choose but I don't know if that's a factor.
You are your mother's next of kin so you would have priority. Take it. Your cousin as a beneficiary would be next in line. Your aunt and your father would lose out to either of you. Get an attorney to file a Petition for Probate for you.
An Executor as well as a Successor Executor is normally nominated in a Will but where there is no Will, or where the Will is silent as to a Successor, it is the court who formally appoints an Executor after a noticed hearing.
Probate Code Section 8460 sets forth an order of whom the Court will appoint for a personal representative if someone dies without a Will. I think the same order will be followed, but it will be the Court’s decision.
