Probate in Real Life I: Named Executors Declining to Serve

January 11, 2011
300px Rundumkennleuchte blau Probate in Real Life I: Named Executors Declining to Serve

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A Fairly Common Scenario

Let’s say you live in a townhouse next door to a kindly elderly widower renting the place.  You help him with groceries, getting the newspaper, and make sure he pays his bills on time.  You become his confidant and spend more and more time exchanging life stories and shooting the breeze with him.  He tells you that he has a will, even though he has few assets and no family besides his estranged brother, who is listed as his executor.  He then tells you that he wants to change his will to name you as his executor/executrix (the latter term is the feminine version of the former), and you agree to do so.

Let’s further say that shortly before he finalizes the will with the attorney, you wake up in the middle of the night to flashing lights coming from outside your window in front of your neighbor’s home.  At the funeral, you meet your neighbor’s brother, who says he has absolutely no interest or desire to serve as executor.

Issues and Questions

A client of mine recently contacted me to explain a similar situation involving a friend.  She asked me the following important questions:

  • What happens if the person named the executor does not want to serve?
  • If something happens to me, who is going to clean out my house and liquidate my stuff?
  • If you, acting as executor, fail to properly liquidate the assets, can the heirs later sue you?
  • If the beneficiaries begin dispersing assets before an executor is named, are they committing a crime?
  • Can a landlord make a claim against the estate for lost rent?
  • Does the executor have any more duties beyond the ones you talked about in last week’s post?

In the next several posts, we’ll attempt to answer these questions.

What Happens if the Named Executor Doesn’t Want to Serve?

The person you name in your will as executor does not automatically become one upon your death because your will merely serves as a nomination.  The will must first be submitted to the court clerk, and the court needs to determine if 1) your choice is competent; or 2) the person even wants to serve at all.  People opt not to serve as executor all of the time, especially given the time demands, stress and potential liability if errors are made.

If the named person declines, all state statutes list preferred replacements.  In most states, the next of kin or a beneficiary listed in the will (or a person designated by either of these persons) is the first choice.  If no such person steps up, state statutes then suggest one or more of the following:  the decedent’s creditors, a guardian or conservator, a public administrator or any other person who is eligible or interested.

In our scenario above, your neighbor’s brother could refuse the assignment, and instruct the court that he names you to take his place.  In practice, unless there is some dispute, most courts will not stand in your way, as long as you are competent and have a desire to do the job.

Comment Below With Other Questions

Stay tuned for answers to my astute client’s other questions in my following posts.  If you have any other questions on this topic, please don’t hesitate to list them in the comments section below.

 Probate in Real Life I: Named Executors Declining to Serve
 Probate in Real Life I: Named Executors Declining to Serve


Scott R. Zucker, Esq. is the owner of The Zucker Law Firm PLLC, located just outside the Capital Beltway in Annandale, within five miles of the City of Fairfax, the county seat of beautiful Fairfax County, Virginia. The firm focuses mainly on estate planning services for Virginia, Maryland and Pennsylvania clientele, and seeks to do so in an affordable and approachable way. People interested in learning more can contact Scott by phone or email.

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4 Responses to Probate in Real Life I: Named Executors Declining to Serve

  1. Christie
    January 17, 2011 at 11:39 am

    Once the will is finalized with the attorney, the widower has the will recorded with the Court. With the recordation, is the executor/executrix approved? Upon the widower’s death, what would happen id the will were already recorded?

    • Scott
      January 18, 2011 at 6:12 pm

      Hello Christie!

      A will can be recorded at the court before the widower’s death, but this act does not create any rights or an approval in a named executor / executrix. The court does not approve of the executor until after the widower has died. This is because the court does not know in advance if the named person wants to serve or is competent to do so.

      I hope this helps. Thank you for your question!

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