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The Executor’s Role in the Probate Process

The Probate Process and the Executor's Role - Estate Planning - Trust

What is the executor’s role in the probate process?  To ensure proper estate planning and administration, one needs to understand the basics of the probate process. The probate process involves distributing a deceased person’s estate. In plain English, probate is the legal term used to describe the re-titling of the property from the deceased’s name to the beneficiary’s name.  During this process, a person’s property is distributed according to the deceased’s will (or according to the California probate code if there is no will).  The probate court presides over this process and resolves any claims to the estate, including claims of heirs, beneficiaries, creditors, or other interested persons.

The Executor’s Role in the Probate Process

An executor is a central figure in this process. An executor acts as the estate’s personal representative to carry out the directions and intent of a will and may be named in the will. The executor often is a relative or close friend of the deceased. The reason and hope is that the relative or close friend will properly manage and distribute the estate’s assets in conformity with the provisions and intent of the deceased’s will.

In certain circumstances an executor may be removed through an amendment to a will and a new executor will be appointed. What rights does this replaced executor have in the will? If this replaced executor, who may have been a close friend or relative, does not agree with how the new executor is managing the estate, can he or she challenge the will?

Under California law, a person has standing to challenge a will if that contestant is an “interested person.” An “interested person” basically refers to an heir, beneficiary, child, spouse, creditor, or any “other person having a property right in or claim against a trust estate or the estate of a decedent which may be affected by the proceeding.” The California Court of Appeals recently issued an opinion clarifying whether a replaced executor is an “interested person” and has standing to challenge a will.

Rights of Replaced Executor to Challenge the Will

In Estate of Sonia Sobol, the decedent executed a will naming an executor. Thereafter, the decedent executed a codicil (an addition that modifies, explains, or revokes part of the will) removing the original executor and naming three different people as co-executors of the will. The codicil did not make any other changes.

During probate of decedent’s will, the replaced executor objected to the codicil on several grounds. The court held that the replaced executor was not an “interested person” and lacked standing to challenge the will. Specifically, the court held that a replaced executor lacks standing when “the subsequent document effects no changes in the dispositive provisions, and only changes an executor.” What is more, a former executor’s right to receive fees for administration of the estate does not make that person an interested person with standing to contest a will.

It is important to note that the codicil did not make any changes in dispositive provisions of the will, and the result may have been different had there been other changes. Ultimately, whenever changes are made to a will, one should understand the purpose, as well as the potential future implications of any change.

Estate planning and administration can be daunting, even for those that are familiar with the process. If you have any questions regarding California probate laws, our experienced estate attorneys can help counsel you.

We invite you to learn more about the integrated tax, legal, accounting and business consulting services of Allen Barron and  contact us or call today to schedule a free consultation at 866-631-3470.