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Being named as an executor may be a tremendous honor, but the title also carries significant responsibility. An executor holds many important duties, and often must perform these obligations while navigating the grief of losing a loved one. Furthermore, complications such as advanced age or physical distance may make it difficult to perform the tasks required.
How to Decline Being an Executor
While it is important to carefully consider whether to serve as an executor or not, you are not obligated to serve just because you have been named in the Will. Any person nominated as an executor can decline the role for any reason. This is accomplished by executing a form called a Renunciation of Nominated Executor. As the title suggests, by signing this form in the presence of a notary public and filing it with the appropriate Court, you can renounce your right to serve as Executor and allow the next person in line to serve. Note that you can only renounce the designation after the testator passes away – you cannot pre-emptively decline to serve in the role.
What Happens If You Decline?
Typically, a Will names a successor executor, who will have top priority to act as fiduciary in your stead. However, if there is no successor executor named, or if the successor executor is unable to act for some reason, any of the beneficiaries named in the Will can act in a fiduciary capacity by obtaining Court documents called Letters of Administration c.t.a. (cum testament annexo; or, “with the Will annexed”). If none of the beneficiaries agree to serve, the beneficiaries can each designate another individual to serve, provided they can each agree on the person (see SCPA 1418(6)).
Can an Executor Resign After Being Appointed by the Court?
An executor can also decline to serve in the role after they have been appointed by the Court, though the process involves additional hurdles. In this case, a Court-appointed fiduciary must request permission from that Court to resign. The fiduciary must clearly provide “good cause” for leaving the role – in other words, the executor needs a compelling reason to quit, and must show that their resignation is in the best interest of the estate. Additionally, the executor must provide a formal accounting to all beneficiaries of all financial transactions made since her appointment, meaning the resignation process can be extensive.
Should the court determine that the resignation is in the best interest of the estate, and none of the beneficiaries object to the accounting, the Court will make a determination as to whether the executor can resign. Ultimately, the final decision rests with the Court – so if you are having doubts over whether you would like to serve as executor, it is far easier to resign at the beginning of the process rather than quit midway.
By Britt Burner, Esq. and Frank Oswald, Esq.
Britt Burner, Esq. is the Managing Partner at Burner Prudenti Law, P.C. focusing her practice areas on Estate Planning and Elder Law. Frank Oswald, Esq. is an associate attorney at Burner Prudenti Law, P.C. focusing his practice areas on Trusts and Estates. Burner Prudenti Law, P.C. serves clients from New York City to the east end of Long Island with offices located in East Setauket, Westhampton Beach, Manhattan and East Hampton.
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