Legal Question in Wills and Trusts in California
My father died 5 years ago with a will that appointed his sister as executor of his estate. The problem is his sister died before he did and he never changed the will, or had an alternate executor in place. My dad has 7 children and we want to appoint one as executor. He didnt have any property so we did not have to do probate. We paid what bills he had, but we want someone to be executor just incase something else come up in the future. Thank You for your time.... The answer i got for this question was that we dont need to do anything since theres no property or bills left. I understand that but we want to appoint someone executor, so my question is how do we go about doing that?
3 Answers from Attorneys
I did answer this too. If you all agree, appoint one of the seven as "Executor" when the time comes. If the time never comes, you need do nothing. If you don't agree, one of you has to file a Petition with the probate court asking to be appointed even though there is no probate matter. You will need a Judicial Council form that can be found on most court websites or the State Bar website. That will require the filing fee of $395 or whatever it is locally in San Diego or where ever when you file and the person asking to be appointed will have to explain to the Court what the "just in case" nature needed is. It is then up to the Court to agree to appoint or not.
You can not appoint someone executor; the Will either names someone who can act as executor [his sister can not] or the court has to appoint an administrator. If there are no assets nor bills left, then if there was an executor they would have to close the estate anyway, no matter what might happen in the future, so there is no reason to appoint one now because of something that might happen in the future.
Mr. Shers is exactly right. The will only nominates the executor. The court appoints the executor. However, the court would throw the petition out if there are no assets and no debts because the courts are not in the business of "just in case." If there is nothing for an executor to do, the court will not appoint one.
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