Who can be the personal representive (formerly known as executor)?
The Massachusetts Uniform Probate Code (MUPC) became effective as of March 31, 2012.
Under the MUPC, the person in charge of the estate of a deceased person is called a “personal representative”. Before the MUPC, we used the terms "executor"--if a person died with a Will--and "administrator"--if a person died without a Will.
Whether or not there is a Will, § 3-203(a) of the MUPC has a “priority ladder,” which establishes who has priority to be appointed as the personal representative. Generally, the order is as follows: (1) the person named in the Will, (2) the surviving spouse who is also a devisee, (3) other devisees, (4) the surviving spouse, (5) other heirs of the decedent, (6) if no known spouse or next of kin, a court-appointed public administrator.
As a side note, a "devisee" is the term referring to a person who is to inherit property under the Will, "heirs of the decedent" are those who would inherit in the absence of a Will, and "decedent" is the term referring to the person who died.
A person with priority may decline to serve as personal representative. Moreover, a person named as personal representative in the Will can decline and nominate a successor if and only if the Will explicitly provides that the named personal representative has the power to nominate a successor.
Rather than let the law determine who will be in charge of your estate, one should have an estate plan and name a personal representative in one's Will. One should also name a successor personal representative (backup person) and/or give your named personal representative the power to nominate a successor of his or her choosing.
Nothing in this blog should be considered legal advice as this is a complicated area of the law.