Disputes over the administration of celebrity estates often garner public attention. Court proceedings related to the estate of the late actress, Anne Heche, is one of the latest examples. Ms. Heche died tragically in August 2022 due to injuries sustained in a car accident, and, since then, her 20-year-old son (from whom she was allegedly estranged) and her ex-boyfriend (who is also the father of her 13-year-old son) are now engaged in a bitter dispute over control of her estate.

While estate-related disputes attract more attention when celebrities are involved, they are happening with increasing frequency among celebrities and non-celebrities alike. These disputes almost always result from the absence of an estate plan, poorly drafted or outdated estate planning documents, and competing interests among those who have a potential claim to the estate. The problems caused by inadequate planning are often amplified when the decedent leaves behind a blended family, multiple former spouses or significant others, and children from different relationships. Add the element of substantial wealth—and the prospect of generating even more wealth by monetizing the name and likeness of a celebrity or other valuable assets the decedent left behind—and you have the recipe for an estate contest.

The dispute over Ms. Heche’s estate provides an opportunity to reflect on a commonly disputed issue that must be addressed in the earliest stages of an estate contest—the issue of control. The person with the authority to control the administration of an estate is commonly referred to as the personal representative or executor of the estate. This person must be appointed by a court before s/he has authority to act on behalf of the estate in that capacity.

Once appointed, the personal representatives serve in a fiduciary capacity, which means they owe various duties to the estate, its creditors, and its beneficiaries. For example, personal representatives have a duty to marshal the decedent’s assets; protect and preserve those assets throughout the estate administration; identify and pay the decedent’s creditors; and ultimately distribute the decedent’s assets in accordance with the decedent’s intentions (if the decedent had a will) or pursuant to the laws of intestate succession (if the decedent had no will). Personal representatives also have a duty to put their own personal interests aside, prudently manage estate assets, act in the best interest of the estate, and account for their work to estate beneficiaries and to the court. Any breach of these duties can subject the personal representative to removal and/or liability.

When disputes arise over who should be appointed as the personal representative, courts rely on rules of priority. For example, any person who the decedent nominated in his/her will has the highest right of priority to serve as personal representative. For this reason, a well-crafted estate plan always identifies the decedent’s preferred choice of personal representative, and often one or more successors if the decedent’s first or second choice is unable or unwilling to serve. In the absence of a will, in situations where the will fails to nominate a personal representative (or a suitable successor), or if the nominated person cannot serve or is determined by a court to be unfit to serve, then state laws governing the priority of appointment (which vary from state to state) will identify those who have the priority to serve as personal representative and in what order.

Regardless of a person’s priority to serve as personal representative—either by nomination in a will or by applicable state law—any party with an interest in an estate can challenge another person’s request to be appointed to serve in that role. In these instances, judges typically have some discretion to appoint a person of lesser priority, including a neutral professional. How much discretion a judge has or is willing to exercise will vary from state to state and, often, from judge to judge.

Ms. Heche’s estate provides an example of a judge deciding he had very little discretion to disqualify Ms. Heche’s eldest son (20-year-old Homer Laffoon) from serving as the temporary personal representative of her estate, over the objection of her ex-boyfriend (James Tupper), even though evidence suggested Mr. Laffoon was not qualified for the role. For example, the judge discounted evidence suggesting Ms. Heche desired to appoint Mr. Tupper as the personal representative of her estate because those wishes were not documented in a valid will. The judge also was not moved by evidence demonstrating Mr. Laffoon was relatively young, estranged from Ms. Heche at the time of her death, and otherwise unfit to serve because of a lack of skill, experience, and education. Summing up his decision to appoint Mr. Laffoon, the judge indicated he was “not aware of any authority to support the proposition that [the] appointment of [Mr. Laffoon] should be denied in favor of someone else having a lower priority” and further noted that, “in California, you can be illiterate” and still serve as personal representative of an estate.

While Mr. Laffoon’s statutory priority to serve as the personal representative of Ms. Heche’s estate won the day (at least for now), judges in other states often exercise their discretion to deviate from statutory priority when the circumstances warrant. This is particularly true when the estate has substantial value or owns unique assets that require a high degree of sophistication or requires ongoing management and supervision to effectively administer (e.g., a business or intellectual property rights). It is also more common when the court anticipates a particular person’s appointment could be divisive and lead to future disputes, all at the expense of time and money for the estate.

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