Handling Estate when all nominated Executors fail to qualify



Dear Mr. Premack: My aunt made a Will that named her older brother as Executor. She recently died, but her older brother Executor died two years ago. The Will also lists my cousin as the alternative Executor, but my cousin lives in California, wisely won’t travel while Covid is still around, and says she’ll decline to be Executor. There is no one else listed in the Will as Executor, but the Will does divide up my aunt’s sizeable estate among various nieces and nephews who all desire to get their inheritance. As the only family member nearby, is there a way for me to become Executor of the estate? – S.E.


Probate is necessary to prove the validity of the Will, to authorize distribution of the assets to the people named in the Will, and to handle any debts or taxes someone left unpaid. It is also necessary to have a personal representative for the estate to perform those tasks, and to lift liability from any financial institutions so that they are willing to release your aunt’s assets.


Generally, under a Will the personal representative will be the Executor identified in the Will. It is wise to list alternatives as well, just in case the first choice is unable to become Executor. Best practice is to list at least three people who, ideally, are younger than the Testator (maker of the Will) and are thus likely to be around after the Testator’s death.


Not all Testators have three people they would trust to act as their Executor. That can be a challenge, but there are two solutions: 1) The Testator may be able to update the Will if one of the nominated Executors becomes disabled or dies. 2) The Testator can name a bank with a trust department as the final alternative Executor, so that the bank’s professional staff can step in if all prior choices die, are disabled, or decline to act.


Your aunt’s estate has, however, simply ran out of nominated Executors. Your California cousin will need to formally waive her duties by signing a notarized statement declining to serve., Then, under these circumstances, the law allows any interested person to offer the Will for probate and to seek appointment as the personal representative. The process is called “Appointment of an Administrator with the Will Annexed”. All provisions of the Will relating to distribution of inherited assets must be followed by this Administrator. You, or any of the beneficiaries, would qualify to apply for the position.


However, the Administrator will not be able to take advantage of certain laws that streamline/make less expensive the probate process of court appointment of an Executor who was named in the Will. Typically, the Will instructs that the Executor act with minimal court supervision and instructs that the Executor does not have to buy an insurance bond to protect the heirs.


The Administrator will need to be supervised by the court and will need to post bond (which makes the process much more expensive) unless 1) All the beneficiaries named in the Will ask the court, in writing, to allow the Administrator to act without supervision, and 2) All the beneficiaries named in the Will ask the court, in writing, to allow the Administrator to act without posting bond.


If they all make that formal written request, the court can appoint you as “Independent Administrator” with the Will Annexed. If even one of them declines, you will need to be court supervised and bonded. Because the bond is intended to protect the beneficiaries from dishonestly, theft, or fraud by the Administrator.


The lesson to take from this: be sure to review your Will annually, to check with your nominated Executors, and to be wary of appointing someone living far away (at least until the pandemic subsides). Talk to your estate planning attorney to be sure you are adequately protected.

Paul Premack is a Certified Elder Law Attorney, handling Wills and Trusts, Probate, and Elder Law issues. He is licensed to practice law in Texas and Washington.