San Antonio Express-News
February 25, 2004

Appointment of Different Executor

copyright 2004, Paul Premack

The first source you must look to is your father’s Will. As you say, he named your sister as Executor. But did he (with the help of his attorney) anticipate that she might not serve, and thus name an alternate Executor in his Will? If he did, then that alternate is the person who will serve if she steps aside. Depending on your father’s prior choice, that alternate may or may not be your sister’s son. Either way, your father’s named alternate is the person entitled to serve if she bows out.

If that alternate Executor wants to serve, the process is straightforward. The attorney who is aiding with probate of the Will would draft a sworn waiver of appointment for your sister to sign (before a notary). It would be filed with the probate clerk along with the Will and Application for Probate, in which the alternate requests appointment as Executor.

Supposing that alternate does not want to serve, he or she must also sign a sworn waiver of appointment. Continue to progress through any other alternates named in the Will, until one of them either agrees to serve or they all waive appointment.

If everyone named in the Will waives appointment, then state law determines the process for appointing someone else. The Probate Code puts tighter restrictions on an applicant when the decedent (your father) did not name that person in the Will as a choice for Executor. Assuming your sister’s son was not named in the Will, he would apply to be "Administrator" rather than "Executor." As Administrator, he would be required to post bond and would be subject to supervision of his responsibilities by the court.

That supervision can be a big factor in how fast the estate can be handled and how much it will cost. Most actions the Administrator takes would need prior approval by the Judge, which slows things down and increases the attorney’s fees.

There is one way, under these circumstances, to avoid court supervision and to eliminate the bond. Under state law, since each Executor named in the Will would have properly waived appointment, it is legal for the distributees to agree to unsupervised administration. The law requires all of the distributees be officially served legal notice of the application for independent administration; it also allows distributees to waive notice or actually appear in court. The court must be satisfied that it is hearing from all the heirs, so the proponents must offer clear evidence that everyone is accounted for; no heir can be left out of the process.

Once the facts are established, the heirs may unanimously select a person to serve as independent administrator. Any individual heir who disagrees can prohibit the whole process. But if no heir dissents, the court must appoint the person they have selected (unless the court finds that it would not be in the best interest of the estate to do so). Your sister’s son could become independent administrator of the estate if all those conditions and processes are honored.