Just a hypothetical, but what if the lawyer named in the will or by the deceased has passed away or is no longer practicing? Who chooses a new person, or does it shift to, say, their legal partner?
Some government official, usually a court. Here is my personal experience:
In 1982, “Alice” draws a will and names “Bob” (my brother-in-law) as executor. In 1985, Alice dies. Well, it appears that Bob did a real lousy job of executor. When Bob died in 2018, went through Bob’s mail. I discover that Alice still had an active brokerage account with $28k in it. In addition, I discovered that our state was holding another $30k in abandoned/unclaimed money in Alice’s name. I decided to have myself appointed as “personal representative”, which has the same powers as an executor. It took four months as I had to locate Alice’s heirs and also the heirs of those heirs that had died. What surprised me was that it was the head of the county probate department who signed off and made me the personal representative. I didn’t even have to present my evidence to a judge. It took another three months to re-open the estate, then collect and distribute the assets to the 11 beneficiaries.
A properly written will should name successor executors, especially if the executor is a private individual who may not be available when the time comes. IMO two or three successors should be named. If the executor is a lawyer or someone in professional executorial practice, there are probably processes already in place in that firm to handle such situations that (presumably) the decedent approved of when the will was written.
When my father died, a friend of his whom he had named as executor didn’t want to do the job. We did have to go through a government office of some sort (I don’t remember which) to get a new executor named, but since all of us heirs agreed on who it should be, there was very little fuss.
In retrospect, our choice might have been a mistake, since the new executor, though not one of the heirs, was a creditor of my father’s, which set up some conflicts of interest. But everything ended up resolved without too much trouble.
What are executor alternatives to say using a spouse, relative or friend? Is it always an estate attorney? Might a charity provide that service?
IANAL but it’s my understanding you can name pretty much anyone who’s legally qualified. For a time, an officer at my parents’ bank was their executor. I don’t know if a charity would necessarily want to take on the responsibility.
The eventual executor of my father’s estate was his brother, an engineer and businessman. And I think the executor in my mother’s will is one of her sisters.
It’s time for me to make a decision. I want to have a will but I have no executor. I have very few relatives and the friends I have are out. I repeat, I have no executor.
I need one and I want to identify that person soon. I really don’t know what my options are. Is there anyone on here who might know?
I really don’t want to pick a name out of a hat. There has to be an option for some sad s.o.b. like me. Can the teeming millions help me?
Find a local probate attorney. The attorney will be able to serve as executor/executrix, or advise you on someone else who can. You really want to have an attorney’s assistance in drafting your will anyway, since it sounds like you have specific plans for your property. If you die intestate (without a will), your state’s law will automatically establish who gets your stuff.
If the executor is a lawyer, the inventory attorney will typically be the successor. In Florida at least, every attorney must name an attorney who will assume handling of their cases if the original attorney is incapacitated or dies, called an inventory attorney. The will itself should include 3-4 candidates to assume the role, since wills are supposed to be helpful long after they are written.
Either way, the probate court can name a new executor if not otherwise provided in the will
I was the executor of my father’s estate, and even though I was named the executor in the will, I still had to be officially appointed by the probate court after a brief hearing of myself, the judge and the probate attorney.
So I would imagine that if the designated person was not available for whatever reason, the court would be the institution that appoints a new executor, and I imagine it would likely be an attorney appointed by the court if they couldn’t scare up a relative willing to do it.
Should the executor be local? In other words is it a bad idea to choose someone who lives out of state?
OK. Find a local probate attorney AND 3 more to take that attorney’s place if they aren’t available when the time comes. The whoever is the probate attorney at the time would name the inventory attorney. Is that right?
The family members mentioned aren’t going to get much if I have my way, and I intend to.
Questions concerning potential contesting of a will:
Is there such a document that states something to the effect that, “If you accept this money, then you waive all options to contest any this or any other part of this will.”? Or something to that effect.
What about a way to have legal and binding proof of my mental capacity at the time of the certification of the will? Or whatever that might be called.
I’m not implying that anything will be contested, I’ve seen that these are some of the reasons someone might use to contest, I just want any potential loopholes plugged before it happens.
Thanks
Those sound like questions to ask of the lawyer, once you find one you like. They’re more knowledgeable about your specific state’s laws, they’ll have access to all of the details of your specific case, and they’re the experts at all of this.
Find a local probate attorney and let him or her worry about finding alternative executors. Will contest clauses tend to be disfavored in many states as a matter of public policy, so that is something to discuss with a probate lawyer in your state.
Same goes for your mental capacity question. There is no way to have “binding proof” of your capacity, but as a general rule, people are presumed to be competent. Anyone claiming otherwise will have an uphill climb, unless there are contemporaneous medical records in which your physicians indicate your competency might be in doubt.