# Hypothetical law question. (Probate?)

**URL:** <https://boards.straightdope.com/t/hypothetical-law-question-probate/445246>\
**Category:** Factual Questions\
**Created:** [April 14, 2008, 3:09am UTC](https://boards.straightdope.com/t/hypothetical-law-question-probate/445246 "2008-04-14T03:09:54Z")\
**Posts on this page:** 12\
**Page:** 1

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**Author:** ![picunurse](https://avatars.discourse-cdn.com/v4/letter/p/7bcc69/32.png) [@picunurse](https://boards.straightdope.com/u/picunurse)\
**Post date:** [April 14, 2008, 3:09am UTC](https://boards.straightdope.com/t/hypothetical-law-question-probate/445246/1 "2008-04-14T03:09:54Z")

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My husband and I were talking about who can be an executer of a will. I’m pretty sure I recently read that a person named in the will can’t be executer, because they have a stake in the outcome.  
Hubby says no, that next of kin is commonly named as such.

Who is correct?

Thanks.

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**Author:** ![Polycarp](https://avatars.discourse-cdn.com/v4/letter/p/82dd89/32.png) [@Polycarp](https://boards.straightdope.com/u/Polycarp)\
**Post date:** [April 14, 2008, 3:30am UTC](https://boards.straightdope.com/t/hypothetical-law-question-probate/445246/2 "2008-04-14T03:30:39Z")

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Not true in New York, at least – I was executor of my parents’ and aunts’ estates, and also the primary heir of three of the four (my mother’s estate went to my father, who outlived her by four months).

There are sometimes good reasons to avoid having an heir as executor – consider the horror stories we’ve heard about families squabbling over estates, and consider the difficulty this puts the sibling/child chosen as executor in. If an estate is complex, with trusts and such involved, it’s sometimes wise to have a lawyer or a corporate entity, e.g. a bank or a PLC law firm, function as executor. But I have a hunch that the “heir cannot be executor” meme is an UL.

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**Author:** ![Noel\_Prosequi](https://avatars.discourse-cdn.com/v4/letter/n/b19c9b/32.png) [@Noel\_Prosequi](https://boards.straightdope.com/u/Noel_Prosequi)\
**Post date:** [April 14, 2008, 5:20am UTC](https://boards.straightdope.com/t/hypothetical-law-question-probate/445246/3 "2008-04-14T05:20:15Z")

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I can’t speak for every jurisdiction in the world, but having a rule that an executor can’t inherit imposes practical problems on modest estates, because it would mean that wills would have to be drafted in such a way that the heirs would be burdened with the practical obligation of having to pay a professional executor, which might effectively swallow up a significant amount of the assets.

In most jurisdictions of which I am aware, executors can be heirs. Executors have fiduciary obligations for the performance of which they can be sued, and they can relatively easily be ordered to account for their disbursement of assets.

What is sometimes forbidden, however, is for _witnesses_ to the will to be heirs. In such cases, the risk of undetectable undue pressure being brought to bear on the testator is thought to be so high and the cost of precautions against it so small that it is thought to be best not to allow witnesses to wills to take beneficially in the administration of the estate.

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**Author:** ![picunurse](https://avatars.discourse-cdn.com/v4/letter/p/7bcc69/32.png) [@picunurse](https://boards.straightdope.com/u/picunurse)\
**Post date:** [April 14, 2008, 10:51am UTC](https://boards.straightdope.com/t/hypothetical-law-question-probate/445246/4 "2008-04-14T10:51:58Z")

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Thank you both. I hate to have to tell him he was right. :smack:

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**Author:** ![Mama\_Zappa](https://avatars.discourse-cdn.com/v4/letter/m/71e660/32.png) [@Mama\_Zappa](https://boards.straightdope.com/u/Mama_Zappa)\
**Post date:** [April 14, 2008, 11:04pm UTC](https://boards.straightdope.com/t/hypothetical-law-question-probate/445246/5 "2008-04-14T23:04:30Z")

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Definitely not true in Pennsylvania, as two of my brothers were co-executors for my mother’s estate.

What may be true is that a person who is also a beneficiary, usually doesn’t collect an executor’s fee (typically a couple of percent of the estate’s value). I encouraged my brothers to do so, but they declined. That would have come off the top of the estate amount, then the 4 siblings would have evenly divided the remainder.

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**Author:** ![Gfactor](https://avatars.discourse-cdn.com/v4/letter/g/9de053/32.png) [@Gfactor](https://boards.straightdope.com/u/Gfactor)\
**Post date:** [April 14, 2008, 11:28pm UTC](https://boards.straightdope.com/t/hypothetical-law-question-probate/445246/6 "2008-04-14T23:28:09Z")

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[QUOTE=uniform probate code]  
72-3-501. Who may not be personal representative. No person is qualified to serve as a personal representative who is:  
(1) under the age of 18;  
(2) a person whom the court finds unsuitable in formal proceedings.  
[/QUOTE]  
[http://data.opi.state.mt.us/bills/mca/72/3/72-3-501.htm](http://data.opi.state.mt.us/bills/mca/72/3/72-3-501.htm)

> [@](#):
>
> 72-3-502. Priorities for appointment. Whether the proceedings are formal or informal, persons who are not disqualified have priority for appointment in the following order:  
> (1) the person with priority as determined by a probated will, including a person nominated by a power conferred in a will;  
> (2) the surviving spouse of the decedent who is a devisee of the decedent;  
> (3) the custodial parent of a minor decedent;  
> (4) other devisees of the decedent;  
> (5) the surviving spouse of the decedent;  
> (6) other heirs of the decedent;  
> (7) public administrator;  
> (8) 45 days after the death of the decedent, any creditor.

[http://data.opi.state.mt.us/bills/mca/72/3/72-3-502.htm](http://data.opi.state.mt.us/bills/mca/72/3/72-3-502.htm)

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**Author:** ![Gfactor](https://avatars.discourse-cdn.com/v4/letter/g/9de053/32.png) [@Gfactor](https://boards.straightdope.com/u/Gfactor)\
**Post date:** [April 14, 2008, 11:32pm UTC](https://boards.straightdope.com/t/hypothetical-law-question-probate/445246/7 "2008-04-14T23:32:22Z")

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Ok. That was actually the Montana version of the UPC. Here is the actual UPC provision:

> [@](#):
>
> Section 3‑203. Priority Among Persons Seeking Appointment as Personal Representative.
> 
> (a) Whether the proceedings are formal or informal, persons who are not disqualified have priority for appointment in the following order:
> 
> (1) the person with priority as determined by a probated will including a person nominated by a power conferred in a will;
> 
> (2) the surviving spouse of the decedent who is a devisee of the decedent;
> 
> (3) other devisees of the decedent;
> 
> (4) the surviving spouse of the decedent;
> 
> (5) other heirs of the decedent;
> 
> (6) 45 days after the death of the decedent, any creditor.
> 
> (b) An objection to an appointment can be made only in formal proceedings. In case of objection the priorities stated in (a) apply except that (1) if the estate appears to be more than adequate to meet exemptions and costs of administration but inadequate to discharge anticipated unsecured claims, the Court, on petition of creditors, may appoint any qualified person; (2) in case of objection to appointment of a person other than one whose priority is determined by will by an heir or devisee appearing to have a substantial interest in the estate, the Court may appoint a person who is acceptable to heirs and devisees whose interests in the estate appear to be worth in total more than half of the probable distributable value, or, in default of this accord any suitable person.
> 
> (c) A person entitled to letters under (2) through (5) of (a) above, and a person aged [18] and over who would be entitled to letters but for his age, may nominate a qualified person to act as personal representative. Any person aged [18] and over may renounce his right to nominate or to an appointment by appropriate writing filed with the Court. When two or more persons share a priority, those of them who do not renounce must concur in nominating another to act for them, or in applying for appointment.
> 
> (d) Conservators of the estates of protected persons, or if there is no conservator, any guardian except a guardian ad litem of a minor or incapacitated person, may exercise the same right to nominate, to object to another’s appointment, or to participate in determining the preference of a majority in interest of the heirs and devisees that the protected person or ward would have if qualified for appointment.
> 
> (e) Appointment of one who does not have priority, including priority resulting from renunciation or nomination determined pursuant to this section, may be made only in formal proceedings. Before appointing one without priority, the Court must determine that those having priority, although given notice of the proceedings, have failed to request appointment or to nominate another for appointment, and that administration is necessary.
> 
> (f) No person is qualified to serve as a personal representative who is:
> 
> (1) under the age of [21];
> 
> (2) a person whom the Court finds unsuitable in formal proceedings.
> 
> (g) A personal representative appointed by a court of the decedent’s domicile has priority over all other persons except where the decedent’s will nominates different persons to be personal representative in this state and in the state of domicile. The domiciliary personal representative may nominate another, who shall have the same priority as the domiciliary personal representative.
> 
> (h) This section governs priority for appointment of a successor personal representative but does not apply to the selection of a special administrator.
> 
> COMMENT
> 
> The priorities applicable to informal proceedings are applicable to formal proceedings. However, if the proceedings are formal, a person with a substantial interest may object to the selection of one having priority other than because of will provisions. The provision for majority approval which is triggered by such a protest can be handled in a formal proceeding since all interested persons will be before the Court, and a judge capable of handling discretionary matters, will be involved.
> 
> In considering this section as it relates to a devise to a trustee for various beneficiaries, it is to be noted that “interested persons” is defined by 1‑201(20) to include fiduciaries. Also, 1‑403(2) and 3‑912 show a purpose to make trustees serve as representatives of all beneficiaries. The provision in (d) is consistent.
> 
> If a state’s statutes recognize a public administrator or public trustee as the appropriate agency to seek administration of estates in which the state may have an interest, it would be appropriate to indicate in this section the circumstances under which such an officer may seek administration. If no officer is recognized locally, the state could claim as heir by virtue of 2‑105.
> 
> Subsection (g) was inserted in connection with the decision to abandon the effort to describe ancillary administration in Article IV. Other provisions in Article III which are relevant to administration of assets in a state or other than that of the decedent’s domicile are 1‑301 (territorial effect), 3‑201 (venue), 3‑308 (informal appointment for non‑resident decedent delayed 30 days), 3‑309 (no informal appointment here if a representative has been appointed at domicile), 3‑815 (duty of personal representative where administration is in more than one state) and 4‑201 to 4‑205 (local recognition of foreign personal representatives).
> 
> The meaning of “spouse” is determined by Section 2‑802.

[http://www.law.upenn.edu/bll/archives/ulc/upc/final2005.htm](http://www.law.upenn.edu/bll/archives/ulc/upc/final2005.htm)

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**Author:** ![MLS](https://avatars.discourse-cdn.com/v4/letter/m/919ad9/32.png) [@MLS](https://boards.straightdope.com/u/MLS)\
**Post date:** [April 15, 2008, 12:23am UTC](https://boards.straightdope.com/t/hypothetical-law-question-probate/445246/8 "2008-04-15T00:23:01Z")

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Definitely not true in NJ either, based on personal experience.

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**Author:** ![Qadgop\_the\_Mercotan](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/qadgop_the_mercotan/32/83_2.png) [@Qadgop\_the\_Mercotan](https://boards.straightdope.com/u/Qadgop_the_Mercotan)\
**Post date:** [April 15, 2008, 1:36am UTC](https://boards.straightdope.com/t/hypothetical-law-question-probate/445246/9 "2008-04-15T01:36:01Z")

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Untrue for Wisconsin also. I was executor for my dad’s estate. My duty was to see that his will was carried out. Said will gave everything to me.

So my sworn duty was to see that I got what was coming to me. 😉

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**Author:** ![picunurse](https://avatars.discourse-cdn.com/v4/letter/p/7bcc69/32.png) [@picunurse](https://boards.straightdope.com/u/picunurse)\
**Post date:** [April 15, 2008, 2:46am UTC](https://boards.straightdope.com/t/hypothetical-law-question-probate/445246/10 "2008-04-15T02:46:33Z")

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[QUOTE=Qadgop the Mercotan]  
Untrue for Wisconsin also. I was executor for my dad’s estate. My duty was to see that his will was carried out. Said will gave everything to me.

So my sworn duty was to see that I got what was coming to me. 😉  
[/QUOTE]

I’m sure that’s true, more often than not. 😉

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**Author:** ![jackelope](https://avatars.discourse-cdn.com/v4/letter/j/a6a055/32.png) [@jackelope](https://boards.straightdope.com/u/jackelope)\
**Post date:** [April 15, 2008, 3:17am UTC](https://boards.straightdope.com/t/hypothetical-law-question-probate/445246/11 "2008-04-15T03:17:58Z")

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**picunurse** , perhaps your husband had heard of the ethics clause, in Tennessee’s and probably most states’ ethics codes, that says a lawyer can’t draft a will in which the lawyer is a devisee? I.e., if the will leaves something to the lawyer, then it needs to be drafted by someone else?

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**Author:** ![picunurse](https://avatars.discourse-cdn.com/v4/letter/p/7bcc69/32.png) [@picunurse](https://boards.straightdope.com/u/picunurse)\
**Post date:** [April 16, 2008, 3:52am UTC](https://boards.straightdope.com/t/hypothetical-law-question-probate/445246/12 "2008-04-16T03:52:34Z")

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[QUOTE=jackelope]  
**picunurse** , perhaps your husband had heard of the ethics clause, in Tennessee’s and probably most states’ ethics codes, that says a lawyer can’t draft a will in which the lawyer is a devisee? I.e., if the will leaves something to the lawyer, then it needs to be drafted by someone else?  
[/QUOTE]

Thanks, but it is I that was mistaken, sadly, not my husband.  
I thank everyone who responded. I am sufficantly corrected 😃