2.1 The Statute:
“§ 5-104. Order of rights to letters
In granting letters in administrative or judicial probate, or in appointing a successor personal representative, or a special administrator as provided in Title 6, Subtitle 4 of this article, the court and register shall observe the following order of priority, with any person in any one of the following paragraphs considered as a class:
(1) The personal representatives named in a will admitted to probate;
(2) The personal representatives nominated in accordance with a power conferred in a will admitted to probate;
(3) The surviving spouse and children of an intestate decedent, or the surviving spouse of a testate decedent;
(4) The residuary legatees;
(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 this article, the parents of the decedent who are entitled to share in the estate;
(8) The brothers and sisters of the decedent who are entitled to share in the estate;
(9) Other relations of the decedent who apply for administration;
(10) The largest creditor of the decedent who applies for administration;
(11) Any other person having a pecuniary interest in the proper administration of the estate of the decedent who applies for administration; or
(12) Any other person.”
“§ 5-105. Restrictions on right to letters
(a) “Serious crime” defined. –
(1) In this section, “serious crime” means a crime that reflects adversely on an individual’s honesty, trustworthiness, or fitness to perform the duties of a personal representative.
(2) “Serious crime” includes fraud, extortion, embezzlement, forgery, perjury, and theft.
(b) In general. — Subject to § 5-104 of this subtitle, the register or court may grant letters to:
(1) A trust company;
(2) Any other corporation authorized by law to be a personal representative; or
(3) Subject to subsection (c) of this section, any individual.
(c) Persons excluded. — Letters may not be granted to a person who, at the time a determination of priority is made, has filed with the register a declaration in writing that the person renounces the right to administer or is:
(1) Under the age of 18 years;
(2) Mentally incompetent;
(3) Convicted of a serious crime, unless the person shows good cause for the granting of letters;
(4) Not a citizen of the United States unless the person is a permanent resident of the United States and is:
(i) The spouse of the decedent;
(ii) An ancestor of the decedent;
(iii) A descendant of the decedent; or
(iv) A sibling of the decedent;
(5) A full-time judge of a court established under the laws of Maryland or the United States including, a judge of an orphans’ or probate court, or a clerk of court, or a register, unless the person is the surviving spouse or is related to the decedent within the third degree; or
(6) A nonresident of the State, unless there shall be on file with the register an irrevocable designation by the nonresident of an appropriate person who resides in the State on whom service of process may be made in the same manner and with the effect as if it were served personally in the State on the nonresident.”
2.2 Select Issues Concerning Appointment
The statutory order to the right to letters is stated in mandatory terms (“… the court and register shall …”). From time to time, the Section Council of the Maryland State Bar Association has recommended changing this to non-mandatory. (The so-called “Grace Connelly Bill” after the Register of Wills/Orphans’ Court Judge in Baltimore County). Such a change would permit the Orphans’ Court to appoint out of order when it appears that a strict application of the statutory order would be imprudent. This proposed legislation has never been enacted. See, however, Preston Phillips v. Lynn Krause, personal representative (Md. Ct. Spc. Appeals, May 20, 2002) (unreported) (If the Court has reason to remove a person as personal representative it can not appoint the person in the first place.”)
Section 5-104 characterizes each person in each category of priority as a “class.” The Court of Appeals has held that the Orphans’ Court, within its sound discretion, may appoint one member of an equally entitled class to the exclusion of others in the same class. Kuenne v. Loffler, 266 Md. 468, 295 A.2d 219 (1972) (one sister appointed with a second sister petitioning to become a joint personal representative. The second sister’s petition was denied.) Est. & Trusts § 5-106, however, states that all personal representatives named in the will are entitled to probate.
Est. & Trusts § 5-104(2) effectively elevates a personal representative named “in accordance with a power conferred in a will” to be treated as named by the testator. An example of this would be when a personal representative has the authority in the will to name his or her successor. Such a nominated personal representative is treated as if named in the will for § 5-106 purposes.
A guardian of a person entitled to serve as personal representative cannot serve in their stead. Courtney v. Lawson, 97 Md. App. 471, 631 A.2d 102 (1993) (mother of minor child of decedent not entitled to letters).
Est. & Trusts § 5-105 lists persons not qualified to be appointed personal representative. This includes persons convicted of a “serious crime.” Serious crime is a defined term meaning a crime that “reflects adversely” on that person’s trustworthiness. Non-citizens of the United States are not qualified unless such a person is “a permanent resident” and related to the decedent. Judges are disqualified except for estates of spouses or of persons related with in the third degree:
“C” is related in the third degree to “B1“. Non-residents may serve as personal representatives only if a resident agent is on file.