If an Executor Is Not Available Who Could Execute a Will?

By Marie Murdock

The executor is the person named in a will to administer an estate and fulfill the terms of the will, upon the passing of the will maker, or testator. However, a named executor may decline to take on the role of executor, or in some cases, may be deceased or simply unable to fulfill the role. A well-written will typically has provisions for these circumstances, or in the absence of these provisions, the court may intervene.

The executor is the person named in a will to administer an estate and fulfill the terms of the will, upon the passing of the will maker, or testator. However, a named executor may decline to take on the role of executor, or in some cases, may be deceased or simply unable to fulfill the role. A well-written will typically has provisions for these circumstances, or in the absence of these provisions, the court may intervene.

Successor Executor

A well-written will usually designates an alternate or successor executor to act in the place of the first-named executor. If a successor executor petitions the court for letters testamentary, which is the court order granting her authority to act, she will need to show that the initial executor is unavailable. If he is deceased or mentally disabled, she may provide a death certificate or a doctor’s statement. If the initial executor refuses or is unavailable to perform his duties, the court will likely accept an affidavit or petition to resign presented from him stating that he doesn’t wish to accept the appointment.

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No Successor Named

If the will was ill-prepared and there was no successor named, or if all the initial and successor executors are deceased or otherwise unavailable, one of the beneficiaries named in the will may petition the court for letters of administration with will annexed, providing the will along with her petition to the court. Letters of administration grant the petitioner authority to act for the unavailable executor. Once the petition and will are accepted by the court and letters of administration issued, the administrator should carry out the terms of the will just as if he were named executor.

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New York Estate Law When the Executor Dies

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What Happens if an Executor Refuses to Probate?

An executor has a duty to act in the best interest of the estate, and refusing to probate an estate may be cause for the executor to be removed. State probate laws differ, but the Uniform Probate Code, approved by the National Conference of Commissioners On Uniform State Laws, provides a general framework for handling an executor refusing to move the probate process along. In addition to removal, an executor may be held personally liable for breaching his fiduciary duty to the probate estate.

What if the Executor of a Will Is Dead?

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.

How to Force an Executor to Settle an Estate in Maryland

It may be necessary to force an executor to settle an estate if he fails to perform any portion of the probate process. If the will of a Maryland decedent (deceased individual) is not presented to the Maryland Register of Wills or Maryland Orphans' Court by the named executor, Maryland probate law allows anyone with a legal interest in the will to petition the Maryland Orphans' Court to initiate probate. Any interested person may also petition the court to resolve any question or dispute about the probate process along the way.

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