SO YOU ARE THE NAMED EXECUTOR.  MUST YOU SERVE?

The short answer is NO.  YOU ARE NOT REQUIRED BY LAW TO BE THE EXECUTOR OF AN ESTATE even if you are specifically named in the will.  But what do you do?

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Whenever I write a will for a client, I always  make sure there is a primary Executor named and an alternate named in the event the primary is unable or unwilling to serve.  This is important because the primary named Executor might be perfectly able and willing to serve at the time the will is written, but unable or unwilling to serve when the actual time comes.

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When, then, is an Executor unable to serve?  The only real hard and fast rule is that the the court will not appoint anyone with a felony conviction in their  past. Other than that, there are simple personal reasons a person might be unable.  If  the named executor is in a city far away from the estate, that might make them unable to administer the estate.  If they are stationed on military duty or live in another country, that might make them unable to serve.  If they have aged to a point they are uncomfortable dealing with financial matters (such as an elderly spouse), they may be unable to serve. 

But, a person might also be unable to serve simply because they do not have the time, patience or knowledge to handle the estate.  Each of these is good enough.  It is better for the person to decline service than it would be to take on the job then do a poor job or worse yet, do nothing.  It is common for someone to take on the job then do a miserable  job and cause all kinds of legal and family problems as a result.

Being an Executor is serious business.  It involves handling the money and property of others.  It is a fiduciary responsibility and if a person takes on the job and blows it, the court can and will step in to remove the person. 

Heirs might even have a legal claim against the Executor if he or she fails in any of a matter of things.   For example, mishandling someone else's money will cause a fight faster than anything else on Earth.  You can bet that will get you in front of a judge.  And not in a good way. 

Taking forever to do anything will get complaints from heirs.   It takes a long time to administer an estate.  And if there is real estate or other significant assets, it just adds to the time.  

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I've written several times regarding my own experience as executor of my father's estate.  It has taken seven months to get close to finalizing the  estate.  And I'm a lawyer!!!  Heirs must be instructed in the reality that administering an estate can easily take months or even years in some circumstances.   Heirs must be given a full and complete inventory of the estate.  Heirs must receive a copy of the will.  There are real and legal duties an executor owes to the heirs of an estate.

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That brings up another question. Do you have the endurance to do the job?  Quite frankly, it is no fun.  There is pressure from heirs, creditors, and the government.  The county will want to dip its hand into the decedents assets for extra property taxes due to loss of homestead exemption and the IRS will want its share of any income of the decedent, even income the estate earns after they die.  And, heaven forbid, you have to clean up or fix anything before you can sell it or before anyone wants it.  That will add more time to the process.  There are deadlines and notice requirements that must be followed.  

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What if you are bad at math or handling finances.  Then you probably should not serve as Executor.  As I said above, messing around with someone else's money or property always, always, always causes problems.  Always.  Did I say always?  Yes, Always.  So if you are bad with money or finances, do not serve as Executor of an estate.  

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You may also be just UNWILLING to serve.  Again, the law does not place a burden on you to serve.  The law ALLOWS you to serve.  If you choose not to, you can decline.  You do not need to provide a reason to the court or to anybody else.  If you choose not to serve, that's it, you don't have to.   Why is nobody else's business.  Simple. 

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Being an Executor is a heavy burden.  It will stress you, it will eat your time, it will subject you to the impatience of the heirs and the discomfort of the legalities.  You will have to deal with all sorts of people and situations that you do not want to deal with.  You will have to be on the lookout for predators that troll obituaries and seek to take advantage of the unwary.  For example, if there is real estate, you will get tons of offers to "take that old property off your hands."  Of course, these bottom feeding real estate buyers want to give you almost nothing for it. 

People will stop by unannounced and uninvited and try to buy "that old car" or that old antique that they will tell you "ain't worth nothin'."  Problem is, to some heirs, almost nothing is still  something, so you may get pressure to take low ball offers that you know are ridiculous because one or more heirs just wants some money.  I personally found it distasteful dealing with people who were clearly trying to capitalize on my father's death. 

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If you are the best person to handle your deceased family member's estate, you probably should do so.  But, if you think a sibling or professional would be better suited, you can certainly decline the position.

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In the event you are unable or unwilling to serve, you will file what I call a "Declination Letter" with the court.  In it, you are declining to serve.  In that case, the court will consider and appoint the alternate Executor (who should be named in the will.)  It is not uncommon or unusual for this to happen.  I had it happen recently in my own practice.  The named executor did not feel confident in handling large sums of money so we filed a notarized Declination Letter and a sibling who was named as alternate Executor filed the application for probate of the will and for appointment as Executor. 

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Wrapping it up, if you are unable to serve as Executor of an estate due to almost any impediment such as distance, time, or availability, you can decline to serve and you do not need to provide a reason.  If you are unwilling to serve for ANY reason, you may decline to serve and you do not need to provide a reason.  You do not need to have an excuse or provide one to the court.   

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