Must an executor or personal representative be appointed by the probate court?


Norma: Yes, I have a question. My mother in law died number of years ago. We've never been able to find a signed copy of her will. We wrote to the lawyer who did the will and it was not signed. So, we went to the courthouse and checked that it was never probated. My question is this; if somebody was named in that will that wasn't signed, and they were named as an executor, are they really an executor?

Attorney Tom Olsen: Well, two things Norma. Are you telling me that you've found the copy of her will but it is unsigned?

Norma: Absolutely, the lawyer said it.

Attorney Tom Olsen: Okay. So, it is possible in certain situations to probate that will, if you can give this to judge that it was signed, usually they have a signed copy of it. But more importantly is this; is that when you have a will, your will nominates who your executor or personal representative will be. They are not your personal representative or executor until the person has actually passed away and the court has appointed them as executor. So, the will nominates them, they are not actually it until court appoints them. Does that meet your question Norma?

Norma: Well, the brother claims that he was executor and there was a second- his other brother was another executor but it never went through a probate and no court appointed them.

Attorney Tom Olsen: Well, they are speaking wrong. They've been nominated but they are not the executors. So, are there any other issues that's going on Norma, that I might help you with?

Norma: Well, I just was curious about that because, like I said, we have never, ever found a signed will, and we wrote to the lawyer who did it and he said there is a copy of it but there is no signature.

Attorney Tom Olsen: Okay, So, for a person to be appointed as an executor there must actually be a probate started and when somebody is appointed as the executor the judge will give them what's called Letters of Administration. It is those Letters of Administration that give the person the legal authority to go out and transact business on behalf of the estate.