Can I Resign or Decline Being an Executor?

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Question: My aunt recently passed away and I just found out that I was named executor of her Will. I really do not want to serve. Is renunciation an option; 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 aunt resided.  If the Will nominates a successor executor, that individual would then have the right to seek to probate your aunt’s Will. If the first named executor predeceased your aunt and you were named as the successor, then one of the beneficiaries of your aunt’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.

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, unless all of the beneficiaries of the estate consent that a formal accounting be waived by the resigning executor, the Court orders that the executor must judicially settle account his/her account with the beneficiaries as to all financial transactions made as executor.  If any of the beneficiaries 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.

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.

Read more about probate & estates here, elder law here and estate planning here.

Nancy Burner, Esq. and Kera Reed, Esq.

Burner Law Group, P.C.

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