What if the Executor of a Will Is Dead?

by Marcy Brinkley
    Your will should include the name of one or more people to serve as your executor.

    Your will should include the name of one or more people to serve as your executor.

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    The person you name in your will to manage your estate is called the executor. Other terms include fiduciary or personal representative. This person's duties include gathering your assets, paying taxes and bills owed by your estate and distributing the remaining assets to your beneficiaries according to the terms of your will. If the person you named as the executor is not available or is unwilling to serve for any reason, your state's laws allow the court to appoint someone else as executor.

    Court's Role in Appointing an Executor

    Since the executor of your estate is responsible for handling your financial affairs after you die, the court must determine if the executor named in the will is willing and able to perform those duties. If the named executor is unavailable, incapacitated or disqualified because of a conflict of interest or felony conviction, the court will name someone else to serve as executor. Procedurally, no one has authority to act on behalf of the estate until the court issues a document called "letters testamentary" that provides someone with authority to act as executor.

    Named Executor Died First

    Since you may write your will many years before your death, it is possible that the executor named in your will might die before you. In that type of situation, the court will determine if you have named any alternate executors or co-executors in your will. If so, the court will probably appoint one of those individuals unless all of them are unavailable because of death, incapacity or unwillingness to serve. If none of the alternates can be appointed, the court may consider other family members or a distinerested third party such as an attorney or an organization that handles estates professionally.

    Death During Probate

    If you have appointed two co-executors in your will and one of them dies during the probate process, the other co-executor may continue to serve by himself. If, on the other hand, a sole executor dies before concluding the estate, the judge may appoint a successor to handle the estate according to the instructions in your will. In the case of a successor executor, the lawyer for the deceased executor will be responsible for turning over the property and preparing an accounting of the estate.

    Considerations

    When you prepare your will, it is helpful to consider the age and health of the person you intend to name as your executor. If you choose your spouse or someone else close to your age, consider choosing an adult child as co-executor or successor executor to increase the likelihood that at least one named executor will survive you. You may also need to update your will later if one or more of your named executors dies during your lifetime. Unless your state's laws prohibit it, you might consider appointing an attorney, accountant or other professional as co-executor.

    About the Author

    Marcy Brinkley has been writing professionally since 2007. Her work has appeared in "Chicken Soup for the Soul," "Texas Health Law Reporter" and the "State Bar of Texas Health Law Section Report." Her degrees include a Bachelor of Science in Nursing; a Master of Business Administration; and a Doctor of Jurisprudence.

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