What Happens When an Executor Does Not Want to Serve?

If an executor does not want to serve, they can resign and someone else can take over. This is a formal process that must follow New York legal requirements.

Acting as an executor of a New York estate is time-consuming and may be overwhelming for some people depending on the size of the estate and the extent of duties required.

It is not unusual for an executor to decide not to serve and resign for varied reasons:

• time constraints
• lack of experience
• health matters
• a conflict with co-executor or beneficiaries
• the executor resides in another estate or out of the country
• prior commitments
• or other personal reasons.

Most people have their spouse, family member or friend as the executor of an estate. Their loved ones may not be experienced or able to handle the job of being an executor. For instance, large estates may require the management of property, the testator’s business or the sale of personal and real property. Not everyone can do those things.

Formalities

Sometimes, a testator has named an alternate in the testator’s will or there are two executors named. Under New York Law, an executor or beneficiary cannot legally appoint a successor. This can only be done by the New York Surrogate’s Court. If an executor has not yet been sworn in by the Court and decides not to serve, the executor can do nothing and let the beneficiaries file the required documents requesting the appointment of a successor or confirmation of a co-executor as the sole executor, and the Court will remove the existing executor automatically and appoint a successor. Or in the alternative, if the beneficiaries cannot decide on an executor, they can ask the Court to designate a professional to be named as the successor executor.

When an executor has been sworn in by the Court, then the executor must follow some formalities and submit a formal written resignation to the Court with a letter explaining why the executor wishes to resign and ask the Court to appoint a successor. The executor must provide an accounting of all estate monies paid out on behalf of the estate including creditor’s claims and any distributions, provide copies of bank statements and payment receipts to the family and other beneficiaries of the estate as well as to the Court.

If the estate is large with many assets such as real estate, it may be a good idea to have an attorney or another financial professional act as the executor. An executor may receive compensation for their services, which fees are set forth by the New York Statutes.

If a beneficiary suspects that the executor has breached a fiduciary duty, the beneficiary can ask the Court to remove the beneficiary and the executor could be subject to paying restitution to the estate and the beneficiaries if the estate suffered any financial losses.

If you wish to speak to a New York estate attorney, call the Law Offices of Albert Goodwin at (212) 233-1233.