Priority

JurisdictionMaryland

H. Personal Representative

1. [§ 2.23] Priority

An important decision to be made before the commencement of probate proceedings is the choice of a personal representative.

Estates & Trusts § 5-104 sets forth the following order of priority to be observed in the granting of letters:

(1) the personal representatives named in a will admitted to probate;

(2) The personal representative nominated in accordance with a power conferred in a will admitted to probate;

COMMENT RE TESTAMENTARY POWER TO NOMINATE: Added in 2005, EST. & TRUSTS § 5-104(2) allows for a surrogate nomination of a personal representative, more commonly found in trusts. For example, a testator can now provide for a personal representative to designate his or her own successor or for a personal representative to be chosen by a committee or a law firm. It is, however, only a power to nominate, not to appoint. Therefore, a petition for appointment is required.

(3) the surviving spouse and children of an intestate decedent, or the surviving spouse of a testate decedent;

NOTE RE SPOUSE

A spouse retains the right to appointment even after separation or I imited divorce. A spouse who elects against the will is still entitled to priority for appointment. A prenuptial agreement or separation agreement which does not specifically waive the surviving spouse's right to appointment will not defeat such right unless there is a waiver of "all rights." EST. & TRUSTS § 3-205. The Orphans' Court has jurisdiction to determine whether the survivor is the decedent's spouse, the legal status of an alleged common law marriage, and the legal effect of an alleged divorce or annulment. See EST. & TRUSTS § 4-105(4); Kaouris v Kaouris, 324 Md. 687, 598 A.2d 1193 (1991); Lowenthal v. Rome, 294 Md. 277, 449 A.2d 411 (1982), cert. denied, 460 U.S. 1012 (1983); Case Comment, The Effect of a Separation Agreement Upon Surviving Spouse Right to Administer: Hewitt v. Shipley, 2 Md. L. Rev. 75 (1937). See discussion at § 10.2.

NOTE RE CHILD

"Child" includes legitimated child pursuant to EST. & TRUSTS § 1-208. The guardian of a minor child is not entitled to the priority of the child. See Courtney v. Lawson, 97 Md. App. 471, 631 A.2d 102 (1993); see also Comment re Minor at § 2.24.

(4) the residuary legatees;

NOTE

See Henning v. Varner, 34 Md. 102 (1871), wherein the Court concluded that a bequest effectively disposing of all the property of a testator may not always be a residuary bequest.

(5) the children of a testate decedent who are entitled to share in the estate;

(6) the grandchildren of the decedent who are entitled to share in the estate;

(7) Subject to §§ 3-111 and 3-112 of [the EST. & TRUSTS] article, the parents of the decedent who are entitled to share in the estate;

A parent of a deceased minor child who is deemed to have abandoned the minor child or to have willfully failed to support the child is disqualified to serve...

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