Even though the will may name you executor, you are not legally required to fill the role.
Most wills name a secondary executor in case this happens. If not, almost anyone can ask to be executor, and the courts will decide.
If you know you will not be able to fulfill the duties of executor, it is better to be “passed over” before probate starts.
If you decide after probate starts, you will have to be “removed,” and can still be held liable for any mistakes you made.
Being the executor of an estate is a big responsibility. It involves making sure that all the assets in an estate are safe while overseeing their management and distribution to creditors and beneficiaries, which can often be difficult, time consuming, and emotionally draining.
Because it can be such an overwhelming job, sometimes the person originally named as executor finds they are not up to fulfilling the duties of the role. There are lots of reasons why this might be the case. Maybe they were young, healthy, and single with few responsibilities when they agreed to be the executor, but now it’s many years later and they are in a completely different stage of life. They could have obligations to their job and families that make it extremely difficult for them to carry out the duties of an executor in a timely fashion. Or maybe they have become older and infirm themselves and are physically and mentally not up to the task.
If you have been named executor of an estate but know you won’t be able to fulfill your obligations, it’s important to remember that there is absolutely no legal requirement for you to do the job. Even if a probate court has already appointed you to the role, you can file a request with the court to have someone else take over managing the estate. However, experts agree that it is better to decline to serve up front than to start and then find yourself in over your head, because an executor who fails to manage an estate as required, even if the failure is purely due to accident or oversight, can be held personally liable.
Generally, there is a simple solution to finding an alternate executor. Wills commonly name both a primary executor and a substitute in the event the primary executor cannot or will not perform the duty.
As long as they are ready and willing to do the job, almost anyone can take over as the executor of an estate.
However, if there is only one executor named in the will and that person needs to step aside, things can become a bit more complicated. If you are the executor and you know right away that you won’t be able to do the job, you will be excused from the role before probate has been granted. This is called being “passed over” as executor, meaning that the executor is taken off of the estate before they get involved with any aspect of overseeing it. If, on the other hand, you take the initial steps as the executor and probate has already been granted before you realize you won’t be able to do the job, you will instead be “removed” as executor.
In order to be passed over or removed, the executor must submit an application to the court citing evidence why they should be taken off the estate. If, for instance, the executor has been diagnosed with Alzheimer’s and doesn’t trust that they will be able to stay mentally sharp enough to manage the estate in good faith, a written diagnosis from their doctor may be submitted as medical evidence that it’s in the best interest of the estate that they be replaced by someone else.
As long as they are ready and willing to do the job, almost anyone can take over as the executor of an estate. There are some restrictions regarding individuals who live far away—especially out-of-state—or those with a felony conviction, but these rules vary from region to region. As long as the laws in your area allow for it, the primary executor (and any substitute executors who do not want the role) simply notify the court that they will be stepping aside and then the new person can take over. They can even start taking on some executor duties informally before everything is cleared through the court.
Someone with a vested interest in the distribution of the estate—like children, grandchildren or any other beneficiaries—typically volunteer to take over the executor’s role. These are also the people who can apply to the court to have an executor passed over or removed if they believe the person is unable to do the job but they are unwilling to step aside.
As the court makes its decision in these matters, it will try to determine what is best for the estate and its beneficiaries. The court also takes into account whether the executor is going to be temporarily or permanently unable to fulfill their duties. If it seems like the executor is likely to recover from their incapacity—if they’re a new mother, for instance, or someone recovering from a non-life-threatening illness—the court can grant a limited order that names someone else to act as executor until the primary executor is ready to resume their role. But if the incapacity is deemed permanent, a general order will name someone who can take over for good.
If the executor is passed over or removed and there is no substitute executor named in the will, and no viable candidate has stepped up to take on the role of executor, the person or people making the request can ask the court to appoint an independent person outside of the family to manage the estate. This individual is known as an administrator rather than an executor.
Although their roles are almost identical, there are some subtle differences between administrators and executors. An executor gets their power from the will, whereas an administrator gets their power through the court. This typically is not a problem unless the administrator needs to take legal action on behalf of the estate. For example, if the estate contains tenant properties and those tenants stop paying rent, the administrator will need to get a special grant to sue the delinquent tenants. In almost all other respects, the rights and duties of executors and administrators are the same.
Although being an executor can feel like a big, overwhelming job, there is no reason to feel like you have to do it alone. There are many sources of help and support. If there are tasks that don’t require the executor to perform them directly, you can always delegate these to trusted friends and relatives. You can also hire an estates attorney to provide guidance or even take over some of the duties of the job. Take some time to sort through your options. Try to be realistic about your capabilities and expectations, and when you’re ready, reach out for both personal and professional advice to help you through it ●
Probate is often a long and complex process, but it is also completely manageable if you stay organized and follow the instructions of the court. It’s definitely still a good idea to avoid the full probate process, if you can. We’ll walk you through whichever scenario applies to your loved one’s estate.