What Happens If the Executor of a Will Dies?

By Samantha Kemp

If an executor dies after starting the probate process, there are several ways that a new person can take over this role.

When a person writes a will -- known as the testator -- he selects an executor to help finalize his estate by giving notice to beneficiaries that a will is being probated, collecting any money owed to the decedent, paying the estate's bills, paying taxes, filing tax returns and reporting to the probate court. Because this person has the task of making sure the testator's final wishes are carried out, this must be a person the testator trusts. However, if the executor dies, this can ruin the plans the testator made and leave someone in control of these jobs that the testator never imagined playing this role. Fortunately, there are several mechanisms to avoid this from happening.

Testator Makes a Codicil

If the testator is still alive and knows the executor is dead, he can simply make an amendment to his will -- known as a codicil. He can then name a new person to serve in this role.

Co-Executor Continues

Some testators choose to name two or more executors who serve simultaneously. Therefore, if one of them dies, the others simply continue on with their duties.

Successor Executor Assumes Responsibility

On the website of his law firm, Ohio estate planning lawyer Jack Alpern says a testator "should always have a backup plan." He points out that by naming a successor executor, the testator can avoid this decision being made by someone else. A testator can establish a backup plan by naming a successor executor. This is a person he names to take over if the first executor cannot or refuses to act as an executor. The Maryland law firm of Semmes, Bowen & Semmes explains that if the original executor dies while probating the estate, the successor executor takes over where he left off.

Court Appoints a New Executor

The probate process requires someone to act on the estate's behalf, so if no one has the role of executor, the court may appoint someone in accordance with state law. Normally, someone interested in the probate state will petition the probate court for an appointment. State law typically gives a preference to an immediate family member such as the surviving spouse or an adult child. If a preferred family member does not want the job, state law may permit the family member to choose a particular person for the job.