This is a second of series of posts on the basics of D.C. probate administration. You can read the first post on the high-level differences between Virginia and D.C. estate administrations and what type of assets are controlled by a D.C. probate administration by clicking here. This post will focus on qualifications of being able to become the personal representative.
Like in Virginia, the personal representative’s role is to administer the decedent’s estate by finding and marshaling the decedent’s probate assets, pay claims or bills and expenses of administration and, generally, wind up the affairs of the decedent. The personal representative is a fiduciary to the estate. Being a fiduciary means that the personal representative is in a trusted role. The personal representative owes a duty of care and loyalty to the estate. A personal representative must provide a surety bond unless posting a bond was waived by the decedent in the will or waived by the beneficiaries.
The first issue for any person that wants to administer a person’s estate is to become the personal representative. Unlike Virginia, a court appoints a personal representative because of some relationship to the decedent or the decedent’s estate. D.C. code Sec. 20-303 provides a specific order for a person to become personal representative. The court is under no obligation to follow the priority though the court needs a reason to appoint someone out-of-order.
A personal representative will be appointed by the court in the following order:
- the personal representative named in the will,
- the surviving spouse, domestic partner, or children of an intestate decedent or the surviving spouse or domestic partner of a testate decedent,
- a residuary legatee(s),
- the children of a testate decedent,
- the grandchildren of the decedent,
- the parents of the decedent,
- the brothers and sisters of the decedent,
- next of kin of the decedent,
- other relations of the decedent,
- the largest creditor of the decedent who applies for administration, and
- any one else.
There are also several other factors that the court will look at in appointing a personal representative. A younger family related person will be preferred over an older one e.g. the court prefers a niece/nephew over an uncle/aunt. It is very difficult for people with different levels of personal representative priority to serve as co-personal representatives.
The court will also exclude those people who attempt to become personal representative that have the following restrictions:
- filed a written renunciation in not wanting to be the personal representative,
- not over eighteen (18) years of age,
- a mental illness or ward,
- a convicted felon,
- an alien who has not been lawfully admitted for permanent residence,
- a judge of any court established under the laws of the United States or is an employee of the Superior Court of the District of Columbia, the District of Columbia Court of Appeals or the District of Columbia Court System unless that person is a surviving spouse/domestic partner of the decedent, and
- non-resident of D.C. unless they file a power of attorney.
Next post will get into one of the basics of the D.C. administration but results in a great deal of confusion: what is the difference between standard probate, abbreviated probate, supervised and unsupervised probate administrations.