Can I Resign or Decline Being an Executor?

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Question:  My sister recently passed away and I just found out that I was named executor of her Will.   I am really busy with my job and family and really do not want to serve.  Can I decline or resign from being executor?

Answer:  Just because you are nominated as executor of a Will does not mean that you must serve.  You can renounce your rights as executor and decline to act by simply signing and having notarized a Renunciation of Nominated Executor form and filing it with the Surrogate’s Court in the county in which your sister resided.  If the Will nominates a successor executor, that individual would then have the right to seek to probate your sister’s Will. If the first named executor predeceased your sister and you were named as the successor, then one of the beneficiaries of your sister’s will may petition the Court for the probate of the Will. The proceeding where someone not named in the Will petitions the Court for the probate of a Will is called an Administration c.t.a., this is Latin for with Administration with the will annexed.

If an executor who has already been appointed by the Court wishes to resign, he/she must file a petition with the Court seeking permission to resign.  In the petition for permission to resign as executor, the petitioner must demonstrate “good cause”, and the decision of whether the executor will be permitted to resign rests with the Court.  The Court will evaluate whether the executor’s request to resign is in the best interests of the estate.  If the executor is unable to establish that the resignation is in the best interests of the estate, the Court may deny the request.  In addition, in certain circumstances, the court may also charge the resigning executor with the fees associated with the resignation proceeding if they find that the resignation is not for “good cause”. An example of this would be if an executor is resigning because he/she cannot get along with a co-fiduciary.

In addition, unless all of the beneficiaries of the estate consent that a formal judicial accounting be waived by the resigning executor, the Court orders that the executor must judicially settle account his/her account with the beneficiaries and the unpaid creditors of the estate as to all financial transactions made as executor.  If any of the beneficiaries/creditors do not approve of the executor’s account and decide to object to the accounting then the resignation process can drag on for many months even years in some cases.

If you are certain that you do not want to serve as executor, it is best to resign at the outset before the Will is admitted to probate, this will save estate the time and expense of the resignation process. In addition, it will save you from the stress of performing a job that you may be too busy to devote the necessary time and energy it takes to perform properly.

Nancy Burner, Esq. and Kera Reed, Esq.

Burner Law Group, P.C.

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