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.

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.

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.

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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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Massachusetts Laws Regarding the Administrator of an Estate

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Probate is the process of settling a decedent's estate under court supervision. State law may establish an informal probate process for small estates. The executor named in a person's will -- who may be called a personal representative in some states, or an administrator if court-appointed -- must gather and preserve the estate assets and then pay the decedent's debts and taxes before distributing any remaining assets of the estate to the beneficiaries, once the creditors are paid.

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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.

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