What If the Executor of a Will Denies the Executorship?

By Maggie Lourdes

An executor of a will, also referred to as a personal representative, is responsible for managing and distributing a probate estate. The court grants an order to the executor allowing him to pay creditors, dispose of estate assets, file estate tax returns, and conduct any other affairs necessary for the administration of the decedent's estate. An executor generally is appointed by the terms of a will. If no will exists, the court appoints the executor, giving consideration to the preference of the heirs.

An executor of a will, also referred to as a personal representative, is responsible for managing and distributing a probate estate. The court grants an order to the executor allowing him to pay creditors, dispose of estate assets, file estate tax returns, and conduct any other affairs necessary for the administration of the decedent's estate. An executor generally is appointed by the terms of a will. If no will exists, the court appoints the executor, giving consideration to the preference of the heirs.

Denying an Executorship

An executor has no legal obligation to accept an executor appointment. A person may deny the executor's role for any reason. Common reasons for a denial include illness, disability or a conflict of interest. A person who was appointed in a will as an executor and wishes to deny the duties should promptly notify the court of the denial at the opening of the probate estate.

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Requesting Discharge from an Executorship

If the executor has already begun discharging his duties and later wishes to deny continuance, he must make a request for removal with the court. The court will require the executor to wind up the affairs he has begun prudently and promptly. The resigning executor also must provide an accounting to the court, demonstrating all actions taken for the estate. The court will also require the executor to continue acting in the best interest of the estate until an order discharges the executor. The estate's lawyer will generally prepare the order for discharge, however, the court can also enter the order on its own if no lawyers are involved.

Choosing a New Executor

The court will appoint a replacement following the denial by an initial executor. If a will provides for an alternate executor, the court gives that person preference. If no alternate is named in a will, a probate court prefers that the heirs of the estate agree on a replacement executor. However, if the heirs are in dispute, the court may appoint an attorney or other professional to assume the executor's role. Courts retain lists of attorneys and professionals who have been carefully vetted to act as executors when heirs cannot agree on a choice.

The New Executor

Once a new executor is chosen, the court signs an order establishing her authority to act for the estate. An order also will relieve the denying executor of all his legal duties to the estate. Executors who are court-appointed typically bill hourly fees; their services can be costly to the estate.

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Removal of an Executor of Estate's Responsibilities

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Does the Executor Have Authority Over the Will?

An executor is the person named in a will to administer the estate of the person who died. The executor may be a bank or trust company instead of an individual. While state law varies as to the exact duties of an executor, in general all executors must gather the estate's assets, pay creditors, then distribute remaining estate assets in accordance with the will's directives, without any discretion to deviate from the will except in limited circumstances.

What Are the Duties of an Executor of a Will in Delaware?

In Delaware, residents may draft wills directing the distribution of their property after death. A testator, or will maker, typically names an executor in his will whose primary duty will be to gather and distribute his assets upon his death. The Register of Wills formally appoints the executor. Once a formal appointment is made, the executor can legally carry out his duties of administering the decedent's estate.

Executors in Wills

The executor is the person appointed by the court to administer an estate. Usually the court appoints the executor named in the will, unless that person is disqualified. If you do not name an executor in your will, the court will decide whom to appoint. Avoid the court making this important decision by choosing a qualified executor and alternative, thoroughly discussing the executor’s substantial responsibilities with the people you plan to name and making sure they are comfortable accepting the job.

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