Transferring an Executor of a Will

By Beverly Bird

After you write your will -- or even after your death -- you, your beneficiaries, or even your chosen executor might decide that it’s best if she did not assume the job of probating your estate. You can transfer the responsibilities of the position by removing her from office and appointing someone else. Depending on when and why the change occurs, different procedures apply.

Amending the Will

Your will does not become an ironclad document until your death. Until that point, you can easily transfer the executorship from one individual to another by adding a codicil to your existing document. To safeguard against any confusion when you die, state specifically that you’re replacing the executor you named in your initial will with the individual named in your codicil, then attach the codicil to your will. You might also want to state that all other provisions in your will remain the same. In most states, the rules for creating a codicil are the same as those for creating a will. It must usually be witnessed by individuals who can later testify to the authenticity of your signature and that you were of sound mind. You can also create a whole new will, revoking the first one, and name the new executor in the second. This is usually preferable if you’re making many changes in addition to switching executors.

Appointing Trustee as Executor

You might decide that your estate would benefit more from a trust than a will. When you create a trust, you transfer ownership of your assets into the name of the trust, appointing a trustee to oversee them and to distribute them at your death. This usually involves writing a “pour-over” will, designed to address items of property you did not include in your trust, either intentionally or by oversight. The probate process uses your pour-over will to move these assets into your trust when you die. Your can transfer your trustee's powers to the remainder of your estate by naming her as the executor of your pour-over will as well.

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Renunciation of Executor

Your chosen executor can transfer her nomination to someone else after your death, should she decide she doesn’t want the job. Most states provide simple forms, called “renunciations,” that a named executor can submit at the time she presents your will for probate. Some states allow her to nominate someone else to act in her place. In other states, the court chooses her replacement according to statutory law -- close relatives usually receive first priority, followed by anyone else who has an interest or financial stake in your estate. In most jurisdictions, if the executor named in your will does not officially accept the position within a certain period of time, the law automatically takes over and transfers the position to another individual. Be sure to check the individual requirements for your particular state.

Removal of Executor

Your beneficiaries or heirs can also usually take action after your death to transfer the executorship to another individual. However, they must usually have substantial grounds for doing so. This can’t occur simply because they don’t agree with your choice or because they want the court to transfer the powers of the position to themselves instead. They must prove some wrongdoing on the part of your executor, such as that she stole money from the estate, or committed some grievous error that caused your estate to lose money. This involves filing a petition with the court overseeing probate, asking a judge to remove the executor you named and to transfer the job to another individual.

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References

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