Sunday, May 5, 2013

The Appointment of an Executor in the Process of Probate

In American probate law, there is an executor appointed to administer the assets of a person that has passed away. Often they are referred to as a legal personal representative or personal representative of the deceased person. In cases where the person did not appoint an executor to their estate and where there was, instead, an executor appointed by a court they are often referred to as an administrator rather than an executor. The only difference between these two is that the executor must obtain the probate of the deceased persons will whilst the administrator needs to apply for letters of administration. Even sometimes when there is a will, there will need to be an administrator appointed where the will did not specify an executor or the executor died before having the opportunity to administer the estate.

There are a range of people that can potentially be appointed to administer an estate. The reason that the person is called an 'executor' is because the execute the will of the deceased person. Some wills will also have conditions on the appointment of this person depending on the applicable jurisdiction. In theory, any living person can be appointed as an executor subject to their ability to give an oath to the court which may raise questions of legal status, mental capacity and identity. In some limited cases, there may also be a question of character if it can be shown that there is some conduct by the executor which warrants their removal from the position as executor. This conduct would usually have to involve some gross abuse of position as the executor in order to warrant removal.

Once the question of who may be appointed in legal terms is resolved there is then the question of suitability for appointment which is not a questions that courts tend to involve themselves with heavily. Some states require that the person appointed must not be a minor and must not suffer other forms of incapacity such as bankruptcy, mental incapacity or dissolute habits. Once the question of whether an executor is suitable has been resolved, they may be appointed by the will or by a court upon the finding that there was a will but that it did not specify who was to be appointed or that the appointed person has died. In some cases, a person can also be unwilling to take on the responsibilities of being an executor and in these circumstances they may wish to renounce their appointment. This is also possible if the correct forms are filed with the court.

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