After a relative or friend dies, you may be surprised to learn that you were chosen to be the executor of their estate. You might feel pleased to have a chance to do a final and important favor for someone you loved. On the other hand, you might feel you have little choice so that you have to accept the job. In fact, you do have a choice. Even if you feel an obligation to the deceased person — who has both honored and burdened you by choosing you for the role of executor — you can decline the job and let it pass to someone else.
To be nominated to be the executor of a Will imposes upon the person so appointed a fiduciary duty to adhere to the terms of the Will in conformity with California law. That duty can impose personality liability upon the executor should he or she fail to perform as required. And that liability can last decades…it can even be imposed after the death of the Executor
What is an “executor?” It is the person or entity nominated by the deceased person (the “testator”) in a Will to administer the estate of that person as directed by the Will.
However, being nominated as an executor does not mean you have to accept the nomination. Know what you are getting yourself into ahead of time.
The best executors are people who are careful, patient, unquestionably honest, well-organized, and committed to doing a good job. Executors must get along with people — especially the other beneficiaries. They need a good bit of spare time, too. You can expect to spend many, many hours — lasting six months to a year — to do the job. You don’t, however, need to be a financial wizard or legal expert. You can always get professional or personal help with your financial or legal tasks. You can hire professionals (accountants, tax preparers, lawyers, real estate brokers, and so on) who have the expertise you need. Their fees will be paid from estate funds, not your own pocket.
Every estate and every family situation is unique. The difficulty of serving as executor depends on many factors: the size of the estate, your state’s laws, and the complexity of the deceased person’s financial affairs, to name a few.
Complexity of the job. If the deceased person has left property of modest value, with a few major assets and no estate tax issues, accepting the executor’s may not be such a big deal. Or, if you’ve already been helping manage someone’s finances, handling things after death may be a natural extension of your duties. But, if you’re unfamiliar with the person’s affairs, you may face as many practical problems as legal ones: finding the will, untangling investments, digging up insurance policies, and the like. To determine if you can perform an executor’s tasks consider the following primary responsibilities of the executor:
Note that many items on the above list will require the involvement of some outside professionals, such as a lawyer, accountant, appraiser, realtor, stockbroker, etc., and that this is not an exhaustive listing of all executor duties. More complicated estates involve many additional duties.
Personal factors. If you’ll inherit most or all of the property, you have a strong incentive to serve as executor. You’ll be in charge of what will shortly be your own property, and you won’t have other beneficiaries to worry about. If you’re one of several beneficiaries, however, it may be helpful to ask yourself some questions about the reality you will face.
If you decline the job after the person who names you has died, or resign after serving for a while, someone else must take over. If you’re an executor and you haven’t yet begun probate, you should simply notify the alternate executor named in the will. If the deceased has named a back up to serve in place of you or a co-fiduciary to serve with you, then you will need to sign a document which states that you want to decline to serve and then either the backup or co-fiduciary will be able to serve.
An attorney’s guidance will be needed to assure that the declination document is appropriate in your situation. If the deceased didn’t name a backup or co-fiduciary, then in most cases a court procedure will be required to fill the vacant position. Most often, you will need an attorney to assist with the court procedure.
The bottom line is that you can decline to serve and go about your business. Of course, what you choose to do is entirely up to you, but your decision should be carefully considered based upon your unique family and financial situations and after consultation with a qualified probate attorney.
If you wish to gain more information on California probate please contact me for a free consultation. I will spend time with you to answer your questions. From my office in Southern California, I represent families in all Southern California counties, including Imperial County, Los Angeles County, Orange County, San Bernardino County, San Diego County, others spread across the state and interested parties outside California.
To schedule a consultation, call me toll free at 800-575-9610 or locally at 760-989-4820. I enjoy meeting in person whenever possible, but am also available via Skype or through my online contact form.
Disclaimer: This article is intended to provide general information. The content of this publication is for informational purposes only. Neither this publication nor its author is rendering legal or other professional advice or opinions on specific facts or matters. No attorney-client relationship is created by this advisory, nor by any response to the information herein, unless and until a conflicts review has been conducted by William K. Sweeney, and a written agreement containing all terms of representation has been signed.
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