What if No One Wants to be the Executor of an Estate?

What happens when no one wants to be the executor of an estate? Attorney Jimmy Wagner answers this question.
What if No One Wants to be the Executor of an Estate?

When a loved one names you as the executor of his or her estate, the person does so as an expression of the immense trust he or she has in you. However, the position of an executor is one that is not to be accepted lightly. It is therefore understandable if a person rejects the position.

But what is going to become of the estate if everybody is turning down the assignment of the executor? Did the estate plan list who should be the executor?  Was it the surviving spose? Was it a family member? Did the deceased person use an elder law firm when selecting the personal representative?

What are the duties of an executor?

Before we provide answers to what will become of the estate, let us explore what the duties of an executor are:

• Paying creditors' claims: A decedent's debts do not necessarily end with their death. New York law allows that creditors should pursue debts owed against the estate of the decedent. They must reach out to the executor of the estate and communicate the existence of the debt. They must do this before the end of seven months after the probate process begins. They must make their claim in writing, stating the reason for the debt and the amount involved. The executor has to investigate the claims and pay the debts after confirming them.
• Paying taxes: The executor must find out if the estate has any taxes that may be pending. The taxes may include outstanding income liability tax from when the decedent was still alive. The executor must pay these taxes as well.
• Paying other expenses like funeral costs, the cost of locating and collecting the decedent's assets, and maintenance of the property before settling the estate. They are categorized as ordinary and necessary expenses and must not be more than necessary in the circumstances. 
• Distribution of property to beneficiaries: This needs to be done according to the instructions left behind in the will or in the absence of a will, according to the dictates of the law.

The issues an executor has to tackle are complex and he or she must comply with the requirements for providing notification to creditors and beneficiaries and making a full accounting of the estate.

The oversight obligations and control over all the property, investments, and money that the estate owns put a substantial risk of personal liability on the executor. 

If a person agrees to take on the responsibility of executor and mismanages property or money, probably due to inadequate understanding of the process, it could spell trouble for the person in terms of facing a lawsuit.

Therefore, it is important to take the time to seriously ponder whether you should accept the job or not.

I don't want the job. What do I do?

If you have been named the executor of your loved one's asset and you don't want the responsibility, you reject the appointment. You can renounce the position by signing and filing a simple form with the probate court before you accept letters of administration and the authority to act on behalf of the estate. The form is called a Renunciation of Executor form. Fill, sign, and date the form in front of a notary public and file it with the probate court. 

You must be sure that you have not acted on behalf of the decedent's estate in any way such as arranging the funeral or paying the creditors of the estate. As established, these are some of the duties of the executor, and doing them can be misconstrued as you accepting the position.

What happens to the estate when you renounce the position of the executor?

There is an order of priority for naming executors or personal representatives of estates. If a named executor renounces the position, he or she cannot be forced to keep the position. Instead, the will is examined to see if a backup executor was named. If none is named, family members of the decedent will be asked to volunteer for the position.

If that fails, the question will be opened to others that may have a stake in the estate such as potential beneficiaries or creditors. If no one wants to take on the duties of the executor or administrator, the Surrogate's Court of New York may appoint a professional such as a lawyer to administer the estate. 

What are the basic requirements for serving as an executor in New York?

The probate court in New York, called the Surrogate's Court, has eligibility requirements that volunteers must meet before they can be considered as executors. They include the following:

• The person must be at least 18 years old and must be of a sound mind. The court must not judge him or her incapacitated.
• The person must not have a felony conviction (N.Y. Surr. Ct. Proc. Act § § 103, 707.)
• The person must not have issues of substance abuse, dishonesty, improvidence, want of understanding, or be otherwise unfit to serve.

The person should also be able to read and write in English. (N.Y. Surr. Ct. Proc. Act § 707.)

If the potential executor is not a United States citizen, he or she must be aware that New York law requires executors to be either United States citizens or non-US citizens living in New York. If the chosen executor does not meet these requirements, then a co-executor who is a resident of New York must be chosen. (N.Y. Surr. Ct. Proc. Act § 707.)

While these requirements may seem restrictive, they are put in place for the good of the estate and its beneficiaries. Having an executor who lives out of state is not practical. The position of executor comes with the handling of day-to-day matters for a long period – weeks, months, or even longer. Having the executor live far away makes things more difficult than they already are and it is not a good idea.

Seek legal help. Speak with an estate attorney today.

The potential risk of personal liability makes the job of an estate executor or administrator a difficult one to accept, especially when you feel that you do not have the bandwidth to do a good job. For this same reason, it is difficult to impose the position of executor on another person.

As the courts will look to appointing an attorney to administer the estate, you are better served to work with an attorney you are comfortable with. The Law Office of Attorney Jimmy Wagner is known all over New York for providing empathetic yet assertive legal assistance for our valued clients. We have developed a reputation as a trusted estate planning and civil litigation firm right here in Brooklyn. 

No matter the nature of the legal issues you are facing, you can count on the Law Office of Jimmy Wagner for personalized support. We tailor our approach to meet your specific needs. Contact Attorney Jimmy Wagner at 929-477-8889 for help or reach out to us through our contact page.