A Personal Representative is the general term for someone who is in charge of settling an Estate. The Personal Representative can be an Administrator, an Administrator CTA, or it could be an Executor. It’s generally somebody who is appointed by the Clerk of Court to essentially marshal the assets, pay the debts, and distribute the assets of an Estate to the intended heirs, whether that’s by will or by intestacy.
When someone is appointed by will, they’re called an Executor. This is normally an individual who is listed in the will of the deceased either as the primary or secondary or tertiary alternate Executor to serve after the deceased has past. If there is a will that doesn’t name an executor, or if all of the named executors are unavailable, the person attempting to be appointed is called an Administrator CTA.
If there is no will at all, it would be generally next of kin or someone appropriate who petitions to be appointed as the Administrator. Each of these types of Personal Representative have largely the same responsibility, which is carrying out the wishes of the deceased, whether that’s clearly stated in a will or as applied by the state’s intestacy rules. They ultimately have a fiduciary responsibility to act in the best interest of the beneficiaries and the creditors of the estate throughout that process.
If the decedent (the person who has passed away) had a will and the will named an Executor who is still living, the named Executor is generally going to submit the Application for Probate and Letters Testamentary to the Clerk of Court in the county where the deceased resided (where they were domiciled). The pleadings are essentially setting forth that the applicant is the named fiduciary in the Last Will and Testament of the deceased, and that they are requesting to be qualified to serve as a Personal Representative of the Estate. That generally requires obviously the completion and submission of the pleading itself, but also the original will of the deceased setting out that they are indeed the Executor named.
On the application there’s also going to be some details as to the personal information of the deceased, the personal information of the purported Executor, the information of the purported beneficiaries as set forth in the will, and then a preliminary inventory of the deceased individual’s assets. The preliminary inventory will list the personal property of the deceased, and some assets that are generally not probate assets but could be included in probate if there are creditor claims that exceed the amount of the estate. This could include “Transfer on Death” designated assets, real estate, and potentially others.
The process for qualifying to be Administrator looks a lot like qualifying as the Executor. However, there’s a slight difference in the pleadings that are submitted. Generally, the pleading that’s submitted is called the application for letters of administration (AOC-E-202 instead of AOC-E-201 for Executors). We’re generally setting forth the basis for qualification. The Administrator will generally be someone who is the decedent’s next of kin, this is usually in an instance where there is no valid will in place that would otherwise appoint an Executor. We would expect to see relatives who would petition to be Administrator and if not then it could be friends or acquaintances. The Clerk of Court also has the ability to appoint a Public Administrator to settle an estate if there’s no one else willing or able. Generally, we’re filling out the same sorts of information as you would for the Application for Probate and Letters Testamentary.
Generally the persona qualified to serve as Executor is going to be governed by the terms of the will of the decedent. Usually a will is going to appoint a loved one, like a surviving spouse or a child, to serve as Executor of the Estate. After that it’s usually a series of named individuals, usually either as co-executors or in order of priority as individuals. Whoever survives, in that order of priority, would then be the one who’s qualified to serve as Executor. That person is compelled to either move forward with settling the estate or renouncing their right to serve.
Whether it’s an Executor or Administrator, these rules apply equally. The following disqualifies someone from serving as Personal Representative:
– If they’re under 18.
– If they are a judged incompetent by a formal proceeding and they haven’t regained competency.
– If they’re a convicted felon.
– If they’re a non-resident of the state who hasn’t appointed a resident process agent.
– If you’re a corporation.
– If they’ve lost their rights pursuant to chapter 31A of the general statutes.
– If they’re illiterate.
– If they’re a person who the clerk of superior of the superior court finds is unsuitable.
– If they’ve already renounced to their role, either expressly or indirectly basically by the passing of time or failure to step forward as an applicant.
If you’re attempting to serve as the Personal Representative of a Loved One’s estate, we’d be happy to help you navigate this difficult process.
Paul Yokabitus is the CEO and Managing Partner of Cary Estate Planning, a Cary, NC, estate planning law firm. With years of experience in estate and elder law, he has zealously represented clients in various legal matters, including estate planning, guardianship, Medicaid planning, estate administration, and other cases.
Paul received his Juris Doctor from the Campbell University School of Law and is a North Carolina Bar Association member. He has received numerous accolades for his work, including being named among the “Best Attorney in Cary” in 2016 and 2017 by Cary News and Rising Star in 2020-2023 by Super Lawyers.