Law Office of Kurt Elkins


I Need To Open Probate For Someone Who Passed Away, How Do I Get Appointed As Personal Representative?

First issue: Are you qualified?

Qualifications To Be Appointed As Personal Representative:

A. If you are named in a Will to act as executor, you will be eligible to serve if you are over 18 years old and are not subject to a conservatorship or otherwise unable to perform the duties of a personal representative.

B. If you are not named as executor, or if the decedent did not have a Will, you must also be a resident of the U.S. and have priority to be appointed as administrator (if there is no Will) or administrator-with-Will-annexed (if there is a Will but you are not named as executor).

Second Issue: What is your relationship to the person who passed?

Priority For Appointment:

If there is no Will, or if the Will does not nominate an executor (or the persons nominated are unable to serve due to death or because they do not want to serve), then persons related to the decedent are entitled to be appointed in the following order.

1. Surviving Spouse

 (BUT: if a divorce action has been filed but not completed before the decedent's death and the surviving spouse was living separate and apart from the decedent at the date of death, then the surviving spouse is entitled to appointment after the decedent's brothers and sisters)

2. Children

3. Grandchildren

4. Other issue

5. Parents

6. Brothers and sisters (including half brothers and sisters, but not stepbrothers and stepsisters – see issue of a predeceased spouse)

7. Issue of brothers and sisters (nieces and nephews)

8. Grandparents

9. Issue of grandparents (aunts and uncles first, then cousins)

10. Children of a predeceased spouse

11. Other issue of a predeceased spouse

12. Other next of kin

13. Parents of a predeceased spouse

14. Issue of parents of a predeceased spouse

15. 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

15. Public Administrator

16. Creditors

17. Any other person (neighbors, friends, other non-relatives)

A person who has priority for appointment but does not wish to serve may decline and nominate another person as personal representative. If you wish to appointed but there are other family members higher in priority, each one of those persons must decline to serve, in writing.

There is no special or printed form to nominate or decline to serve. You must prepare an attachment for each person as a part of the Petition for Probate. A person named as executor may also decline to serve as executor and nominate another person, but an executor does not have the right to name a successor executor or co-executor.