What Happens When an Executor Resigns From an Estate?

By Phil M. Fowler

Serving as an estate executor is never a compulsory duty; the executor always has the right to resign, no matter what the reason. In fact, executor resignations are a common part of estate administration and the probate process. When this occurs, the presiding judge simply works with the estate to appoint a new executor.

Replacement

The executor is the individual who guides an estate through the probate process. The presence of an executor is, therefore, critical to proper probate administration. Accordingly, the probate judge assigned to the estate will need to replace the executor as soon as possible after the resignation. The easiest path is when the will instructs the probate judge as to the person who should act as the successor executor. However, not all wills identify a successor executor, which makes the appointment task a bit more burdensome for the probate judge.

Appointment Priority

Most state probate codes or statutes identify a pyramid of priority that a probate judge should refer to when appointing a replacement executor. In most states, the first choice is a person identified in the will, followed by the surviving spouse, a surviving child, a surviving parent or sibling and, finally, an heir of the estate.

Protect your loved ones. Start My Estate Plan

Procedure

The standard appointment procedure in most states is for the clerk of the probate court to send a notice of hearing to all family members of the deceased and heirs of the estate. Those family members and heirs will then have a chance to participate in a hearing before the probate judge where any interested party can present arguments to the judge as to why a certain individual should or should not receive the appointment. The judge will then make a final decision in the form of a written order of appointment.

Practical Effects

The practical effect of an executor resigning is that the probate process is put on hold while the judge finds a successor executor. No probate activities take place between the time of resignation and the time of appointment of a successor. Further delay occurs because the successor executor, after being finally appointed, must take time to review the former executor's files, correct any mistakes and pick up the baton to continue the race to the finish line.

Protect your loved ones. Start My Estate Plan
New York Estate Law When the Executor Dies

References

Related articles

How to Resign as Executor of a Will in Texas

The estate of any deceased Texas resident is subject to the Texas probate process. Probate involves the Texas Probate Court recognizing a person's death and authorizing administration of the person's estate. A person appointed as executor by the decedent's will can resign as executor for any reason. Someone may not want to fulfill the role of executor because the duties of executor -- which include distributing property, making a list of debts and notifying the life insurance company of the death -- are too time consuming or difficult to accomplish.

Can the Same Person Be an Executor & Trustee?

The same person can generally serve as both estate executor and trustee so long as the appointed individual meets the independent legal capacity requirements to act as an executor and as trustee. In fact, appointing the same individual to both positions is a fairly common estate planning technique. Concurrent service as trustee and executor can help streamline the probate and estate administration process.

Rules for Witnessing a Will

A last will and testament is a powerful legal document that instructs the executor of an estate how to distribute the property of the writer of the will, known as the testator, after he dies. Because of the potential and motivation for fraud, state governments have passed laws imposing strict restrictions on the format of a will. All states require that the testator's signature be witnessed.

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

Related articles

Does the Executor of a Will Have to Use an Attorney to Execute the Will?

When you create a will, you not only leave instructions for how your property should be distributed upon death, you ...

Who Enforces the Execution of a Will?

In drafting your will, you may appoint a person to serve as your executor, also known as a personal representative. ...

Who Is Designated to Carry Out the Terms of a Will?

After an individual passes away, it is up to the executor to carry out the terms of the will as written by the ...

Does the Executor Have Authority Over the Will?

An executor is the person named in a will to administer the estate of the person who died. The executor may be a bank ...

Browse by category
Ready to Begin? GET STARTED