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What happens if named executor in will refuses to be the executor?

Discussion in 'Estate Planning, Creating Wills & Trusts' started by CindiW, Jul 23, 2020.

  1. CindiW

    CindiW Law Topic Starter Member

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    That is my question. We have a will, executor as written in will has agreed, but what happens if later on he refuses to be executor?
     
  2. PayrollHRGuy

    PayrollHRGuy Well-Known Member

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    Another executor will need to be named.
     
  3. zddoodah

    zddoodah Well-Known Member

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    I'm curious what you mean by "We have a will."

    In any event, it is typically for a person, in his/her will, to nominate an executor and also nominate one or two "back ups" in the event that the first nominated executor is unable or unwilling to serve. For example: "I nominate John Smith to serve as personal representative of my estate. If John Smith is unable or unwilling to serve, then I nominate Susan Jones to serve as personal representative. If both John Smith and Susan Jones are unable or unwilling to serve, then I nominate Pat Johnson to serve as personal representative."

    If, at the end of the day, all of the nominated individuals are unable or unwilling to serve, someone else will seek to do it, and there is always a public administrator for situations in which no one steps up.
     
  4. CindiW

    CindiW Law Topic Starter Member

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    Ok thank you that helps. "We" is me and my husband.
     
  5. welkin

    welkin Active Member

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    You take the will to the probate court and you abdicate. Meaning that you step down. They have a form for you to fill out. If the will names a successor and that person is willing to take on the role, it would be a good thing if they went with you and they will be named the executor/trix..
     
  6. Zigner

    Zigner Well-Known Member

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    That's what happens once one has been appointed. The OP is asking about what happens if the named representative refuses the initial appointment.
     
  7. welkin

    welkin Active Member

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    I disagree. The named executor never has to be appointed. They can refuse. To be appointed they have to present the will and themselves to the probate court. They can abdicate right then and there.
     
  8. Zigner

    Zigner Well-Known Member

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    Huh?
    Let's step through this:

    A person writes a will. In that will, they name a person as "executor" (representative). Until the named person files the will with the court and requests (and is granted) appointment, that person has no authority to do anything. If that person fails to do anything, another person (often, a person named in the will as successor to the originally named representative) can take the will to the court and file a request to be appointed as representative.

    As I stated, the originally named "executor" doesn't have to do anything except refuse to do anything. What, exactly, are you disagreeing with?

    Originally, you stated that the originally named "executor" had to take steps with the court in order to refuse appointment, and that is not true.
     
  9. welkin

    welkin Active Member

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    You are incorrect. Someone has to bring the will to the probate court. That is likely the person that the will was entrusted to and is likely the named executor/trix. When the probate court clerk reads the will they find who is the named executor. Right then and there the named executor (if present) can abdicate and say I refuse to be named the executor. The will still is not registered into probate with a named executor.

    This happens more than you know. Someone writes a will appointing two siblings as executors. They live thousands mile apart. If both were name as executors then every document would have to be signed by both. There are a lot of documents that have to be signed to probate an estate.

    They go to submit the will and one sibling abdicates and let's the other handle the probate. That is what happens. Or when a named executor decides not to accept the appointment, and an alternative is willing, one abdicates and the other is appointed.

    In Pennsylvania they call it RENUNCIATION.

    Here is the form:

    http://www.pacourts.us/assets/files/setting-878/file-5410.pdf

    That form is filed when the will is entered into probate.

    Section 3155 - Title 20 - DECEDENTS, ESTATES AND FIDUCIARIES
     
  10. Zigner

    Zigner Well-Known Member

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    After all that you wrote, what am I incorrect about? Are you saying that the named executor MUST take these steps? Please cite the legal requirement.
     
  11. zddoodah

    zddoodah Well-Known Member

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    Does that mean you have a single will that covers the two of you?
     
  12. welkin

    welkin Active Member

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    That a named executor/trix doesn't have to first be named in an open probate to abdicate the position. They can do that when the will is presented to probate.
     
  13. Zigner

    Zigner Well-Known Member

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    I didn't say that at all. What I am saying is that a nominated representative doesn't have to do anything, and that by failing to act, that would be considered a refusal (or inability) to perform the duties. Are you saying that a nominated representative is required, by law, to "abdicate" with some specific act? If you are, then heck, I'm gonna nominate George Lucas just so that he HAS to act upon his refusal, else risk being forced to be the representative of my estate.
     
  14. welkin

    welkin Active Member

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    Generally speaking someone that is named in a will as executor is someone the decedent knew and trusted and may have give their will to for safe keeping. To just ignore the fact that a will needs to enter probate is something I don't understand so the named person does nothing according to you.

    You are being argumentative when you know what I am saying.

    The question was can a named executor not take the position. The answer is yes by filling out the form that I linked to and submitting it to the probate court along with the will. Or if contacted by the court if they were not the one submitting the will. Is that clear enough for you now?
     
  15. PayrollHRGuy

    PayrollHRGuy Well-Known Member

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    You just don't get it. The nominated executor need do NOTHING to not be the executor.

    Bob writes a will nominating Bill as the executor. Bob dies. Bill sits at home and binges every episode of Days of Our Lives and never responds to calls, letters, or any other method used to contact him. He won't be the executor.

    Bill doesn't have to contact the court that he doesn't want to be the executor.
     
    Last edited: Jul 24, 2020
    shadowbunny likes this.
  16. Zigner

    Zigner Well-Known Member

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    Your answer is not incorrect, but it is not complete and is therefor misleading. You present this as the ONLY way to do it, but it's not the only way to do it. Your statements imply that the nominated representative MUST take some action in order to decline the position, which is wrong.
     
  17. CindiW

    CindiW Law Topic Starter Member

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    I probably didn't make myself clear. I am asking what happens if, after we both die, the named executor decides it's too much for him. Then what happens? We have the assets (if there any left) appropriated to the sources we want them to go to.
     
  18. CindiW

    CindiW Law Topic Starter Member

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    Thanks for answer. Yes, we have friends right now that will know if we die. So I Guess and Suppose that if the named executor is not in a position to do what he has agreed upon, then the ones who know (and they are responsible human beings, so we can alert them as to the will, even though they are not named as executors), will know what to do. Which is, I guess, bring it to probate court. What a mess these wills are. But I guess they're better than nothing. Or are they?
     
  19. CindiW

    CindiW Law Topic Starter Member

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    In addition, I still don't understand. We just had the added paper notarized and made up by a lawyer adding an executor. OK, so I guess I should bother the lawyer to figure what does the executor do in the state of PA to disperse the whatevers.
     
  20. Zigner

    Zigner Well-Known Member

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    You made yourself perfectly clear. If the person you nominated to be the executor decides he doesn't want to do it, then he doesn't have to do it. You should name an additional person (or additional persons) as successor/alternate representatives in case the first one doesn't want to serve in that capacity.
     
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