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.
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.
Read More: Rights of the Executor of a Will
This arrangement does not work for everyone. When more than one person is tasked with the responsibilities as an executor, there may be disagreements. A co-executor can petition the probate court to remove one or more of the executors if the administration of the estate becomes too contentious.
Consult with an estate planning attorney or review the law in your state regarding codicils. You may need to follow certain legal formalities, such as having two witnesses sign your codicil.
- American Bar Association: Choosing the Executor or Trustee
- Texas Constitution and Statutes: Estates Code -- Chapter 4
- Nolo: Naming More Than One Executor
- Nolo: If There’s No Will, Who’s the Executor?
- FindLaw: Estate Administration: The Will After Death
- Semmes Attorneys at Law: Selecting Your Executor And Trustee
- Alpern Law: Why You Must Name Successor Guardians and Executors in a Will
Samantha Kemp is a lawyer for a general practice firm. She has been writing professionally since 2009. Her articles focus on legal issues, personal finance, business and education. Kemp acquired her JD from the University of Arkansas School of Law. She also has degrees in economics and business and teaching.