Greensboro, NC asked in Estate Planning and Probate for California

Q: Couple is divorced and Will names Ex-Spouse as executor. She is clearly disqualified. What if ex-spouse's sister is name

Ex spouse's sister is named as alternate. Will was written prior to divorce. Can ex-sister-in-law qualify to serve? It seems like a conflict but I can't find anything to support that.

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2 Lawyer Answers
Richard Samuel Price
Richard Samuel Price
Answered
  • Estate Planning Lawyer
  • Redlands, CA
  • Licensed in California

A: There are a few scenarios where the ex-spouse will not be able to serve as the executor.

Was the decedent married at the time of death? If so, the surviving spouse can file a spousal petition without administration.

Does the ex-spouse refuse to act as executor?

Look at the assets of the estate, are they of a character and value that requires a formal probate petition?

Anyone can bring a petition for probate, so the ex-sister-in-law can bring the petition and then the ex-spouse would have to contest or bring a competing petition if she wants to be executor.

The best thing to do is to bring your case to an attorney for a full consultation.

Bruce Adrian Last
Bruce Adrian Last
Answered
  • Estate Planning Lawyer
  • Pleasant Hill, CA
  • Licensed in California

A: To expand on Mr. Price's answer:

I am assuming that by "divorced" you mean that the divorce proceeded to the point where the court entered a judgement terminating the marital status. (As an aside, in California the court may, and often does, terminate the marriage before dividing the property.)

Once a testator's (that's the person who wrote the will) marriage is terminated (dissolved or annulled), the dissolution terminates all transfers of property to the ex-spouse and all provisions nominating the ex-spouse as an executor (and trustee, conservator, or guardian.) Cal. Probate Code 6122. The former spouse is treated as if they failed to survive the testator. Id.

Now keep in mind that this does not revoke the entire will, just the provisions apply to the former spouse. Also, it is possible that any divorce judgement may include provisions regarding how the ex-spouses may dispose of their estate following death.

So, as far as executors go, the next in line will have priority. Most wills contain nomination provisions something like this:

"I nominate my spouse, Sue, as executor. If she fails to survive me, then I nominate my brother Bob."

If the the testator dies after divorcing Sue, then Bob has priority.

A similar effect may occur with an distribution provision. Wills commonly contain alternate distributions due to death, for example:

"I give my entire estate to my wife Sue, if she survives me. If Sue fails to survive me, then I give my estate to my living issues by right of representation." ("Issues" is the legal term for blood decedents of any generation. "Right of Representation" describes how the property is divided among the issues."

Again, if the testator dies after divorcing Sue, then his estate is give to the testator's issues. (Of course, if the kids are minors, the nomination of the ex-spouse as their guardian is void.)

Mr. Price is correct that anyone can petition to serve as an executor (or, if they are not named in the will, and "administrator with will annexed."

Whether or not a new spouse has any inheritance rights is a more complicated and an attorney should be consulted.

As to use of a Spousal Property petition, this is only effective to pass property to the surviving spouse. And, may not be recommended if you suspect that the ex-spouse may challenge the will or distributions under it. Also, if distributions are being made to anyone other then a surviving spouse, a probate may be required in any event.

Decedent's estate and divorce is an area of the law which includes traps for the unwary. Consulting with an attorney early in the process is recommended.

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