Monday, April 20, 2015


(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 subsection (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 paragraphs (2) through (5) of subsection (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.
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 Section 1-201 to include fiduciaries. Also, Sections 1-403(2) and 3-912 show a purpose to make trustees serve as representatives of all beneficiaries. The provision in subsection (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 Section 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 other than that of the decedent’s domicile are Section 1-301 (territorial effect), Section 3-201 (venue), Section 3-308 (informal appointment for non-resident decedent delayed 30 days), Section 3-309 (no informal appointment here if a representative has been appointed at domicile), Section 3-815 (duty of personal representative where administration is more than one state) and Sections 4-201 to 4-205 (local recognition of foreign personal representatives).
The meaning of “spouse” is determined by Section 2-802. 

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