Who is qualified to be the personal representative or administrator?

In both Virginia and North Carolina, in the case of the death of a child, the custodial parent is going to have preference to be the administrator of the Estate of the child.  Such parent may waive that preference, and designate someone else.  A surviving spouse will also have precedence. In North Carolina, if 90 days passes after death and no one has qualified, if no one is coming forward and a claim must be pursued, the Clerk may, but is not required, to  consider all priorities renounced and appoint a public administrator. These are basically attorneys who reside and practice in the County where the death occurred. The public administrator is generally going to receive 5% of the value of the estate for his services. If six months elapses since death and no such administrator is appointed, the Clerk is obligated to appoint a public administrator if it is brought to their attention.

 

Practicalities.

 

Don’t let it get ugly. You don’t need this kind of aggravation to be added to a tragic situation. As a practical matter, if there are going to be multiple beneficiaries (see questions regarding beneficiaries below) it is important for everyone to agree on whom should be the personal representative.  For instance, if there are two custodial parents of a deceased child, then there may be a ‘race’ to qualify as administrator.  Particularly if things are not peaceful, as, for instance, between divorced parents of a deceased child, it may be better to find a mutually agreeable third party to and agree to allow them to qualify as administrator, rather than to engage in such a ‘race.’

 

Another consideration in a tense family situation is that if there is a settlement, and the parties cannot agree on the distribution, you do not want one of the beneficiaries acting as administrator. You want someone as neutral as possible whose interest is only to reach a fair compromise among the beneficiaries.

 

The person sitting next to the lawyer. Another important consideration is that if suit is brought, and the case does not settle, then the personal representative will be sitting in the chair next to the lawyer representing the estate. Therefore, the Jury will be indentifying most with that person during the course of the Trial. It is therefore important to choose someone whom the Jury will respect and identify with, and obviously, someone who everyone can trust. In other words, just because Uncle Jimmy— who has two felony convictions for fraud and embezzlement— has some accounting experience or is good with numbers, it would be a bad idea to pick him as personal representative. Of course, no one will trust him and what’s more—the jury will know about the two felony convictions. So—Uncle Jimmy—bad idea.