What if the Executor of a Will Is Dead?

By Marcy Brinkley

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.

Protect your loved ones. Start My Estate Plan

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.

Protect your loved ones. Start My Estate Plan
How to Name an Executor or Personal Representative

References

Related articles

New York Estate Law When the Executor Dies

New York, like all other states, recognizes a written will as the proper method for making your wishes known as to the distribution of your assets when you die. The executor is the person named in the will to see that the terms of the will are carried out. If an executor dies before she has completed her duties, the court must appoint a new executor.

How to Obtain a Discharge After Probate

In your will, you can nominate an executor, or representative, to manage your estate between your death and the distribution to your heirs. While it is important for you to make a smart decision about whom you nominate, his appointment will not last forever. At some point, his job is finished and he will be discharged from his position. Your executor must operate within your state’s laws, and state laws vary regarding when and how an executor is released from these duties.

How to Appoint an Executor to Probate in California

An executor in California is a person who is nominated in a will to represent the deceased person’s estate and to carry out the instructions found in the will. A court must approve of the nomination before the nominee can serve as the executor. For most nominees, the court appointment is simply a matter of procedure, but problems can arise if the nominee elects not to serve or if someone contests the nomination.

LegalZoom. Legal help is here. Start Here. Wills. Trusts. Attorney help.

Related articles

Can the Executor of a Will Be a Blood Relative?

The executor of your will is the person who carries out your instructions and wishes as written in your will, according ...

What Are the Qualifications for an Executor for an Estate?

Executors play a vital role in ensuring that your property passes according to your wishes after death. It is the job ...

Do You Have to Notify Someone if They Are No Longer the Executor of Your Will?

Making a will helps ensure your property will be distributed according to your wishes after your death. When you make a ...

When to Notify the Executor of a Will

Called a personal representative in some states, the executor named in a will assumes responsibility for administering ...

Browse by category
Ready to Begin? GET STARTED