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.

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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.

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.