Can an Executor of a Will Be Forced to Execute the Will by a Judge?

by Beverly Bird

    A judge can remove an executor from his position if he does not do his job or if the beneficiaries present good cause why he should be removed. But a judge cannot force a named executor to oversee probate of a will if he doesn't want to and, in fact, most states have simplified procedures for getting out of the job.

    Immediate Resignation

    If you know immediately that you do not want the job of executing the deceased’s will, you can notify the clerk of the probate court. Some states have preprinted forms that you can fill out and sign, resigning or renouncing the position. In other states, you may have to submit a written, signed and notarized statement.

    Implied Resignation

    If you are unsure about wanting the job and fail to take the oath of office or perform any of the executor’s duties after submitting the will for probate, some states will accept this as “implied” renunciation or resignation. Either the court clerk or one of the beneficiaries can demand that you vacate the position if you don’t begin to meet the responsibilities of the job within a certain period of time. In North Carolina, this length of time is at least 10 days but not more than 30 days. If you don’t file a response with the court during that time saying that you don’t want to resign, you will automatically be relieved of the position.

    Resignation After Assuming Duties

    If you actually begin the duties of the job of executor, then realize that you don’t want to continue, you can still get out of the job. You can file a resignation or renunciation with the court clerk at any time, but if you have actually performed some of the duties of the job, most states will require that you submit an accounting of what you have done.

    Replacement

    If the will has named an alternate executor, in most cases that person would be appointed by the court in your place. If that person doesn’t want the job either, the court will appoint someone else, and that person is usually called an administrator rather than an executor.

    About the Author

    Beverly Bird has been writing professionally since 1983. She is the author of several novels including the bestselling "Comes the Rain" and "With Every Breath." Bird also has extensive experience as a paralegal, primarily in the areas of divorce and family law, bankruptcy and estate law. She covers many legal topics in her articles.

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