What If the Executor of a Will Is Dead?

By River Braun, J.D.

What If the Executor of a Will Is Dead?

By River Braun, J.D.

If a will's executor dies or is unable to serve for other reasons, the court appoints another person. After your death, this person, also called an agent, personal representative, or fiduciary, handles your estate. An executor's duties include identifying and protecting your assets, finalizing your taxes, paying outstanding bills, and distributing assets to your beneficiaries.

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Court Appointed Executors

When you pass away, before anyone can distribute any of your assets, the court must first determine who has authority to act on your behalf. When someone dies, certain legal documents must be filed, regardless of the size of the estate and whether or not there is a will. If there is a will, the probate court confirms who you have given authority to act as executor. Once that is determined, the judge must decide whether that individual is willing and able to perform these duties. An individual may be disqualified to serve as an agent if they:

  • Are dead or otherwise unavailable
  • Are incapacitated
  • Have a felony conviction
  • Have a conflict of interest

If your named executor is disqualified for any of these reasons, the judge names a new executor and issue “letters testamentary." This document gives the agent legal authority to act on your behalf.

Naming Executors in Your Will

When you create a will, you have the opportunity to name executors, co-executors, and alternate executors. Because you often craft your will years before you die, there is a chance that your named executors die before you do. If that happens, and you named one or more co-executors, then they serve as your agents upon your death. If you have not named co-executors, but have named alternative executors, the next alternate is appointed by the court, unless, of course, they are unavailable or unwilling to serve. Probating an estate can often take a long time. It is not uncommon for executors to pass away during the process. If this happens, and you have named co- or alternative executors, the court appoints one of them to take the deceased executor's place. In the event that all of your executors, co-executors, and alternative executors are dead, incapacitated, or otherwise unavailable, the court may consider other family members or friends to act on your behalf moving forward. There are also organizations that handle estates in a competent and professional manner. These may be an option if the court cannot find any others. If the court must appoint a new agent, the lawyer for the deceased executor facilitates the transfer of property to the new executor and prepares an accounting of the estate.

 

Considerations When Choosing an Executor

When choosing your executor, there are a number of factors to consider. Age is certainly a factor, but not necessarily a disqualifying one. Choosing more than one executor, as well as alternate executors, is a wise move. This ensures someone you truly trust is in charge of your assets. Additional things to consider include:

  • Business savvy
  • Financial solvency
  • Emotional intelligence
  • Trustworthiness
  • Familiarity with your wishes
  • Organization abilities
  • Attention to detail
  • Time constraints
  • Conflict resolution abilities

If you choose an executor that is older, consider choosing a qualified alternate that is younger and more likely to outlive you and the probate process. Choosing someone in the business or accounting professions as a co-executor is also a good idea.

Choosing an executor is a complex process, with many factors to consider before making the decision. Protect your estate by choosing alternate executors to ensure your estate is in good hands.

This portion of the site is for informational purposes only. The content is not legal advice. The statements and opinions are the expression of author, not LegalZoom, and have not been evaluated by LegalZoom for accuracy, completeness, or changes in the law.